EX-10.1






Exhibit 10.1


EXECUTION COUNTERPART




$1,450,000,000 FIRST LIEN CREDIT AND GUARANTY AGREEMENT




Dated as of December 21, 2006




Among




BOSTON GENERATING, LLC




as Borrower




and




THE GUARANTORS




as Guarantors




and




THE INITIAL LENDERS, SYNTHETIC ISSUING BANKS AND FRONTING BANK

NAMED HEREIN




as Initial Lenders, Synthetic Issuing Banks and Fronting Bank




and




CREDIT SUISSE




as First Lien Collateral Agent




and




CREDIT SUISSE




as Administrative Agent




and




CREDIT SUISSE SECURITIES (USA) LLC AND

GOLDMAN SACHS CREDIT PARTNERS L.P.




as Co-Syndication Agents and as Co-Documentation Agents




and




CREDIT SUISSE SECURITIES (USA) LLC AND

GOLDMAN SACHS CREDIT PARTNERS L.P.




as Joint Lead Arrangers and as Joint Book Running Managers




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	Article I

	 
	 	 	 	 	 	 
	DEFINITIONS AND ACCOUNTING TERMS

	 
	 	 	 	 	 	 
	SECTION 1.01.

	 	Certain Defined Terms
	 	 	2	 
	SECTION 1.02.

	 	Computation of Time Periods; Other Definitional Provisions
	 	 	36	 
	SECTION 1.03.

	 	Accounting Terms
	 	 	36	 
	 
	 	 	 	 	 	 
	Article II

	 
	 	 	 	 	 	 
	AMOUNTS AND TERMS OF THE LOANS, SYNTHETIC DEPOSITS,

REVOLVING CREDIT-LINKED DEPOSITS

AND THE SYNTHETIC LETTERS OF CREDIT

	 
	 	 	 	 	 	 
	SECTION 2.01.

	 	The Loans, Synthetic L/C Deposits, Revolving
Credit-Linked Deposits and the Synthetic Letters of
Credit
	 	 	37	 
	SECTION 2.02.

	 	Making the Loans
	 	 	39	 
	SECTION 2.03.

	 	Issuance of and Drawings and Reimbursement Under
Synthetic Letters of Credit and Matters Relating to
Synthetic L/C Deposits
	 	 	41	 
	SECTION 2.04.

	 	Repayment of Loans
	 	 	49	 
	SECTION 2.05.

	 	Termination or Reduction of the Commitments
	 	 	49	 
	SECTION 2.06.

	 	Prepayments
	 	 	50	 
	SECTION 2.07.

	 	Interest
	 	 	52	 
	SECTION 2.08.

	 	Fees
	 	 	54	 
	SECTION 2.09.

	 	Conversion of Loans
	 	 	55	 
	SECTION 2.10.

	 	Increased Costs, Etc.
	 	 	55	 
	SECTION 2.11.

	 	Payments and Computations
	 	 	57	 
	SECTION 2.12.

	 	Taxes
	 	 	59	 
	SECTION 2.13.

	 	Sharing of Payments, Etc.
	 	 	62	 
	SECTION 2.14.

	 	Use of Proceeds
	 	 	63	 
	SECTION 2.15.

	 	Change of Control Prepayment
	 	 	63	 
	SECTION 2.16.

	 	Evidence of Debt
	 	 	64	 
	SECTION 2.17.

	 	Duty to Mitigate
	 	 	65	 
	SECTION 2.18.

	 	Revolving Credit-Linked Deposit Accounts
	 	 	65	 
	 
	 	 	 	 	 	 
	Article III

	 
	 	 	 	 	 	 
	CONDITIONS TO EFFECTIVENESS AND OF LENDING

AND ISSUANCES OF SYNTHETIC LETTERS OF CREDIT

	 
	 	 	 	 	 	 
	SECTION 3.01.

	 	Conditions Precedent
	 	 	70	 
	SECTION 3.02.

	 	Conditions Precedent to Each Borrowing and Issuance
	 	 	77	 






 









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	SECTION 3.03.

	 	Determinations Under Section 3.01
	 	 	78	 
	 
	 	 	 	 	 	 
	Article IV

	 
	 	 	 	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 	 	 
	SECTION 4.01.

	 	Representations and Warranties
	 	 	78	 
	 
	 	 	 	 	 	 
	Article V

	 
	 	 	 	 	 	 
	COVENANTS

	 
	 	 	 	 	 	 
	SECTION 5.01.

	 	Affirmative Covenants
	 	 	86	 
	SECTION 5.02.

	 	Negative Covenants
	 	 	90	 
	SECTION 5.03.

	 	Reporting Requirements
	 	 	98	 
	SECTION 5.04.

	 	Financial Covenants
	 	 	101	 
	 
	 	 	 	 	 	 
	Article VI

	 
	 	 	 	 	 	 
	EVENTS OF DEFAULT

	 
	 	 	 	 	 	 
	SECTION 6.01.

	 	Events of Default
	 	 	104	 
	SECTION 6.02.

	 	Actions in Respect of the Synthetic Letters of Credit
upon Default
	 	 	108	 
	 
	 	 	 	 	 	 
	Article VII

	 
	 	 	 	 	 	 
	THE AGENTS

	 
	 	 	 	 	 	 
	SECTION 7.01.

	 	Authorization and Action
	 	 	109	 
	SECTION 7.02.

	 	Administrative Agent’s Reliance, Etc.
	 	 	109	 
	SECTION 7.03.

	 	Initial Banks and Affiliates
	 	 	110	 
	SECTION 7.04.

	 	Lender Party Credit Decision
	 	 	110	 
	SECTION 7.05.

	 	Indemnification
	 	 	110	 
	SECTION 7.06.

	 	Successor Administrative Agent
	 	 	112	 
	 
	 	 	 	 	 	 
	Article VIII

	 
	 	 	 	 	 	 
	GUARANTY

	 
	 	 	 	 	 	 
	SECTION 8.01.

	 	Guaranty; Limitation of Liability
	 	 	113	 
	SECTION 8.02.

	 	Guaranty Absolute
	 	 	114	 
	SECTION 8.03.

	 	Waivers and Acknowledgments
	 	 	115	 
	SECTION 8.04.

	 	Subrogation
	 	 	116	 
	SECTION 8.05.

	 	Subordination
	 	 	117	 
	SECTION 8.06.

	 	Continuing Guaranty; Assignments
	 	 	117	 






ii









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	Article IX

	 
	 	 	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 	 	 
	SECTION 9.01.

	 	Amendments, Etc.
	 	 	117	 
	SECTION 9.02.

	 	Notices, Etc.
	 	 	120	 
	SECTION 9.03.

	 	No Waiver; Remedies
	 	 	122	 
	SECTION 9.04.

	 	Costs and Expenses
	 	 	122	 
	SECTION 9.05.

	 	Right of Set-off
	 	 	124	 
	SECTION 9.06.

	 	Binding Effect
	 	 	124	 
	SECTION 9.07.

	 	Assignments and Participations
	 	 	124	 
	SECTION 9.08.

	 	Execution in Counterparts
	 	 	129	 
	SECTION 9.09.

	 	No Liability of the Synthetic Issuing Banks
	 	 	129	 
	SECTION 9.10.

	 	Confidentiality
	 	 	130	 
	SECTION 9.11.

	 	Marshalling; Payments Set Aside
	 	 	130	 
	SECTION 9.12.

	 	Patriot Act Notice
	 	 	131	 
	SECTION 9.13.

	 	Hedge Banks
	 	 	131	 
	SECTION 9.14.

	 	Intercreditor Agreement
	 	 	131	 
	SECTION 9.15.

	 	Jurisdiction, Etc.
	 	 	131	 
	SECTION 9.16.

	 	Governing Law
	 	 	132	 
	SECTION 9.17.

	 	Waiver of Jury Trial
	 	 	132	 






iii









 






	 	 	 	 	 
	SCHEDULES
	 	 	 	 
	Schedule I

	 	—
	 	Commitments and Applicable Lending Offices
	Schedule 2.03(i)

	 	—
	 	Existing Letters of Credit
	Schedule 4.01(b)

	 	—
	 	Loan Parties
	Schedule 4.01(c)

	 	—
	 	Subsidiaries
	Schedule 4.01(e)

	 	—
	 	Governmental Approvals and Authorizations
	Schedule 4.01(g)

	 	—
	 	Litigation
	Schedule 4.01(o)

	 	—
	 	Environmental Disclosure
	Schedule 4.01(q)

	 	—
	 	Surviving Debt
	Schedule 4.01(r)

	 	—
	 	Owned Real Property
	Schedule 4.01(s)

	 	—
	 	Leased Real Property
	Schedule 4.01(t)

	 	—
	 	Material Contracts
	Schedule 5.01(d)

	 	—
	 	Insurance
	Schedule 5.02(a)

	 	—
	 	Liens
	Schedule 5.02(m)

	 	—
	 	2006 Base Capex Amount






	 	 	 	 	 
	EXHIBITS
	 	 	 	 
	Exhibit A-1

	 	—
	 	Form of Revolving Credit Note
	Exhibit A-2

	 	—
	 	Form of Synthetic L/C Note
	Exhibit A-3

	 	—
	 	Form of Term B Note
	Exhibit B-1

	 	—
	 	Form of Notice of Borrowing
	Exhibit B-2

	 	—
	 	Form of Notice of Issuance
	Exhibit C

	 	—
	 	Form of Assignment and Acceptance
	Exhibit D

	 	—
	 	Form of First Lien Mortgage
	Exhibit E

	 	—
	 	Form of Solvency Certificate
	Exhibit F-1

	 	—
	 	Form of Consent and Agreement for Permitted Commodity Hedge and
Power Sale Agreements
	Exhibit F-2

	 	—
	 	Form of Consent and Agreement for Other Material Contracts
	Exhibit F-3

	 	—
	 	Form of Consent and Agreement for Other Material Contracts with
Affiliates
	Exhibit G

	 	—
	 	Form of Intercreditor Agreement
	Exhibit H

	 	—
	 	Form of Security Deposit Agreement
	Exhibit I

	 	—
	 	Form of Annual Budget
	Exhibit J

	 	—
	 	Form of Joinder Agreement
	Exhibit K

	 	—
	 	Form of First Lien Security Agreement
	Exhibit L

	 	—
	 	Form of First Lien Pledge Agreement
	Exhibit M

	 	—
	 	Terms of Subordination
	Exhibit N

	 	—
	 	Form of Closing Date Summary Funds Flow Memo







iv











 





FIRST LIEN CREDIT AND GUARANTY AGREEMENT



          BOSTON GENERATING, LLC FIRST LIEN CREDIT AND GUARANTY AGREEMENT dated as of December 21, 2006
among BOSTON GENERATING, LLC, a Delaware limited liability company (the “Borrower”), the Guarantors
(as hereinafter defined), the Lenders (as hereinafter defined), the Fronting Bank (as hereinafter
defined), the Synthetic Issuing Bank (as hereinafter defined), CREDIT SUISSE, CAYMAN ISLANDS BRANCH
(“CS”), as first lien collateral agent (together with any successor collateral agent appointed
pursuant to Section 7 of the Intercreditor Agreement, the “First Lien Collateral Agent”) for the
First Lien Secured Parties (as hereinafter defined), CREDIT SUISSE SECURITIES (USA) LLC and GOLDMAN
SACHS CREDIT PARTNERS L.P., as co-syndication agents (together with any successor co-syndication
agents, the “Co-Syndication Agents”), CREDIT SUISSE SECURITIES (USA) LLC and GOLDMAN SACHS CREDIT
PARTNERS L.P., as co-documentation agents (together with any successor co-documentation agents, the
“Co-Documentation Agents”), CREDIT SUISSE SECURITIES (USA) LLC and GOLDMAN SACHS CREDIT PARTNERS
L.P., as joint lead arrangers (together with any successor joint lead arrangers, the “Joint Lead
Arrangers”) and as joint lead book running managers (together with any successor joint lead
arrangers, the “Joint Book Running Managers”), and CS, as administrative agent (together with any
successor administrative agent appointed pursuant to Article VII, the “Administrative
Agent” and, together with the First Lien Collateral Agent, the “Agents”) for the Lender Parties (as
hereinafter defined).





PRELIMINARY STATEMENTS:




          (1) The Borrower has requested that the Lender Parties lend to the Borrower up to
$1,450,000,000 (comprised of (a) $1,130,000,000 term loan facility, (b) $250,000,000 synthetic
letter of credit facility and (c) $70,000,000 synthetic working capital revolving credit facility)
to repay all outstanding obligations under the Existing Credit Agreements, pay transaction fees and
expenses in connection with the foregoing (“Transaction Costs”), provide security in the form of
letters of credit to support the working capital needs and obligations of the Borrower and
Guarantors and provide funds for ongoing working capital requirements, to fund in part the
Distribution and the Tender Offer (each as hereinafter defined) and provide funds for other general
corporate purposes of the Borrower and the Guarantors.




          (2) Prior to entering into this Agreement, the Borrower has entered into a certain Initial
Commodity Hedge and Power Sale Agreement (as hereinafter defined) dated as of November 20, 2006,
with Credit Suisse Energy LLC relating to a total of approximately 1600 MW of generating capacity.




          (3) EBG Holdings has commenced the Tender Offer (as hereinafter defined) for up to
$925,000,000 of its Units (as hereinafter defined) to be financed in part with the proceeds from
the Facilities (as hereinafter defined).




          (4) EBG Holdings intends to make a pro rata distribution to its unit holders, prior to the
purchase of Units in the Tender Offer, in an amount of up to $40,000,000 to be financed in part
with the proceeds from the Facilities (the “Distribution”).




 









 








          (5) Simultaneously with the entering into of this Agreement, the Borrower and the Guarantors
are entering into that certain Second Lien Credit and Guaranty Agreement, dated as of the date
hereof (the “Second Lien Credit Agreement”), with each of the banks, financial institutions and
other institutional lenders party thereto from time to time (the “Second Lien Lenders”), and CS, as
Second Lien Collateral Agent and as administrative agent (the “Second Lien Administrative Agent”),
the proceeds of which shall be used in part to repay in full amounts outstanding under the Existing
Credit Agreements.




          (6) The Lender Parties have indicated their willingness to agree to make Loans (as hereinafter
defined), issue Synthetic Letters of Credit (as hereinafter defined), make the Synthetic L/C
Deposits (as hereinafter defined) and make Revolving Credit-Linked Deposits (as hereinafter
defined) subject to the terms and conditions of this Agreement.




          NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
contained herein, the parties hereto hereby agree as follows:




ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




          SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):





     “Accepting Lenders” has the meaning specified in Section 2.06(c).




     “Accounts” has the meaning specified in the Security Deposit Agreement.




     “Accumulated Emissions Credits” has the meaning specified in the Security Deposit
Agreement.




     “Adjusted Base Capex Allowance” means, for any Fiscal Year, $10,000,000 minus any
amount that was, during the prior Fiscal Year, a Pullback Amount.




     “Adjusted Capex Limit” means, for any Fiscal Year, the Adjusted Base Capex Allowance
plus any Carryover Amount for such Fiscal Year plus any Pullback Amount for such Fiscal
Year.




     “Administrative Agent” has the meaning specified in the recital of parties to this
Agreement.




     “Administrative Agent’s Account” means the account of the Administrative Agent
specified by the Administrative Agent in writing to the Lender Parties from time to time.



2









 






     “Affiliate” means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person or is a director or
officer of such Person. For purposes of this definition, the term “control” (including the
terms “controlling,” “controlled by” and “under common control with”) of a Person means the
possession, direct or indirect, of the power to vote 15% or more of the Voting Interests of
such Person or to direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Interests, by contract or otherwise.




     “Agents” has the meaning specified in the recital of parties to this Agreement.




     “Agreement” means this First Lien Credit and Guaranty Agreement, as amended.




     “Agreement Value” means, for each Hedge Agreement or Commodity Hedge and Power Sale
Agreement, on any date of determination, the amount, if any, that would be payable by any
Loan Party to its counterparty to such Hedge Agreement or Commodity Hedge and Power Sale
Agreement, as the case may be, in accordance with its terms as if an Early Termination Event
has occurred on such date of determination.




     “Applicable Lending Office” means, with respect to each Lender Party, such Lender
Party’s Domestic Lending Office in the case of a Base Rate Loan and such Lender Party’s
Eurodollar Lending Office in the case of a Eurodollar Rate Loan, Synthetic L/C Deposit or
Revolving Credit-Linked Deposit.




     “Applicable Margin” means 1.25% per annum for Base Rate Loans and 2.25% per annum for
Eurodollar Rate Loans, Revolving Credit-Linked Deposit and the Synthetic L/C Deposits
(including with respect to the calculation of the fees set forth in Section 2.08).




     “Applicable Revolving Credit Percentage” means, with respect to any Revolving Credit
Lender for purposes of Section 2.18 or the calculation of the Revolving Credit
Exposure, the percentage of the Revolving Credit Commitments represented by such Revolving
Credit Lender’s Revolving Credit Commitments.




     “Appropriate Lender” means, at any time, with respect to (a) any of the Term B Facility
or the Revolving Credit Facility, a Lender (including the Fronting Bank) that has a
Commitment with respect to such Facility at such time and (b) the Synthetic L/C Facility,
the Synthetic L/C Lenders and the Synthetic Issuing Bank.




     “Approved Fund” means any Fund that is administered or managed by (a) a Lender Party,
(b) an Affiliate of a Lender Party or (c) an entity or an Affiliate of an entity that
administers or manages a Lender Party.




     “Asset Sale” has the meaning specified in the Security Deposit Agreement.



3









 






     “Assignment and Acceptance” means an assignment and acceptance entered into by a Lender
Party and an Eligible Assignee (with the consent of any party whose consent is required by
Section 9.07 or by the definition of “Eligible Assignee”), and accepted by the
Administrative Agent, in accordance with Section 9.07 and in substantially the form
of Exhibit C hereto or any other form approved by the Administrative Agent.




     “Auction Date” means the date of the consummation of the Tender Offer.




     “Available Amount” of any Synthetic Letter of Credit means, at any time, the maximum
amount (whether or not such maximum amount is then in effect under such Synthetic Letter of
Credit if such maximum amount increases periodically pursuant to the terms of such Synthetic
Letter of Credit) available to be drawn under such Synthetic Letter of Credit at such time
(assuming compliance at such time with all conditions to drawing).




     “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as
now and hereafter in effect, or any successor statute.




     “Bankruptcy Law” means the Bankruptcy Code and all other liquidation, conservatorship,
bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization or similar debtor relief laws of the United States
or other applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.




     “Base Capex Amount” means, for each Fiscal Year, $10,000,000; provided that the Base
Capex Amount for the 2006 Fiscal Year shall be $12,093,000 to be utilized for the Capital
Expenditures set forth on Schedule 5.02(m) only.




     “Base Case Projections” has the meaning specified in Section 3.01(a)(xiii).




     “Base Rate” means a fluctuating interest rate per annum in effect from time to time,
which rate per annum shall at all times be equal to the higher of:




     (a) the rate of interest announced by CS in New York, New York, from time to
time, as the prime rate; and




     (b) 1/2 of 1% per annum above the Federal Funds Rate.




     “Base Rate Loan” means any Loan that bears interest as provided in Section
2.07(a)(i).




     “Borrower” has the meaning specified in the recital of parties to this Agreement.




     “Borrowing” means a Term B Borrowing, a Revolving Credit Borrowing or a Synthetic L/C
Borrowing, as the context may require.




     “Budget” has the meaning specified in Section 5.03(d).



4









 






     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Rate Loan, Synthetic Letter of
Credit, Revolving Credit-Linked Deposit or a Synthetic L/C Deposit, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.




     “Cabot Guaranty” means the guaranty dated as of January 15, 2000, by Cabot LNG LLC, a
Delaware limited liability company, in favor of Mystic Development and Exelon New England
Power Marketing Limited Partnership, a limited partnership organized under the laws of
Delaware.




     “Call Premium” shall mean, with respect to any applicable commitment reduction under
Section 2.05(a) or any applicable prepayment under Section 2.06(a), an
amount equal to (a) 1.00% of the aggregate amount of such commitment reduction or the
aggregate principal amount of such prepayment (as applicable) if such commitment reduction
or such prepayment (as applicable) occurs within twelve (12) months of the Effective Date.
Any commitment reduction or prepayment made more than twelve (12) months after the Effective
Date will not be subject to the Call Premium.




     “Capital Expenditures” means, for any Person for any period, the sum of, without
duplication, (a) all expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, real property or improvements,
or for replacements or substitutions therefor or additions thereto, that have been or should
be, in accordance with GAAP, reflected as additions to property, plant or equipment on a
Consolidated balance sheet of such Person plus (b) the aggregate principal amount of all
Debt (including obligations under Capitalized Leases) assumed or incurred in connection with
any such expenditures. For purposes of this definition, “Capital Expenditures” shall not
include: (i) the purchase price of equipment that is purchased simultaneously with the
trade-in of existing equipment or with insurance proceeds, except to the extent that the
gross amount of such purchase price exceeds the credit granted by the seller of such
equipment for the equipment being traded in at such time or the amount of such proceeds, as
the case may be and (ii) expenditures made as a part of a Permitted Development so long as
such expenditure is included in the calculation of the aggregate amount of consideration
payable for such Permitted Development and is permitted by the terms of this Agreement.




     “Capitalized Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.




     “Carryover Amount” means, for any Fiscal Year, the amount (not to exceed $10,000,000,
provided that the Carryover Amount for the 2007 and 2008 Fiscal Years shall also include
that portion of the Base Capex Amount for the 2006 Fiscal Year not utilized in the prior
year) by which the Adjusted Base Capex Allowance for the prior Fiscal Year plus any
Carryover Amount as determined during such prior Fiscal Year exceeds Capital Expenditures
made in such prior Fiscal Year.



5









 






     “Cash” means money, currency or a credit balance in any demand account or deposit
account.




     “Cash Equivalents” has the meaning specified in the Security Deposit Agreement.




     “Casualty Event” has the meaning specified in the Security Deposit Agreement.




     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended from time to time.




     “CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.




     “Change of Control” means, at any time after the Auction Date, any “person” or “group”
(within the meaning of Rules 13(d) of the Exchange Act and the rules of the Securities and
Exchange Commission thereunder as in effect on the Effective Date) (other than any such
“person” or “group” holding, directly or indirectly, beneficially or of record, any Equity
Interests in EBG Holdings as of the Auction Date) (the “Proposed Acquiror”) shall have
acquired ownership, directly or indirectly, beneficially or of record, of more than 35% on a
fully diluted basis of the aggregate voting power represented by the issued and outstanding
Equity Interests in EBG Holdings unless (i) such Proposed Acquiror is a Qualified Owner and
(ii) each of S&P and Moody’s shall have provided written confirmation of their respective
ratings of the Facilities (as in effect immediately prior to such acquisition) after giving
effect to such acquisition. For the purposes of this definition, a “person” or “group”
shall not include any of the unit holders of EBG Holdings solely by virtue of such unit
holders being a party to the limited liability company agreement of EBG Holdings.




     “Closing Date Summary Funds Flow Memo” has the meaning specified in Section
3.01(l).




     “Co-Documentation Agent” has the meaning specified in the recital of parties to this
Agreement.




     “Co-Syndication Agents” has the meaning specified in the recital of parties to this
Agreement.




     “Collateral” means all Property (including Equity Interests in any Guarantor) of the
Loan Parties, now owned or hereafter acquired, other than Excluded Property.




     “Collateral Agent’s Office” means, with respect to the First Lien Collateral Agent or
any successor First Lien Collateral Agent, the office of such Agent as such Agent may from
time to time specify to the Borrower and the Administrative Agent.



6









 






     “Commitment” means a Term B Commitment, a Revolving Credit Commitment, a Synthetic L/C
Deposit Commitment or a Synthetic L/C Issuing Commitment, as the context may require.




     “Commodity Hedge and Power Sale Agreement” means, with respect to power, electricity,
capacity, ancillary services, electric transmission, weather, fuel, fuel transmission, fuel
transportation, fuel storage, heat rate options, emissions allowances and emissions credits
and, in the case of each of the foregoing, products related thereto, any swap, cap, collar,
floor, ceiling, option, future, forward, spot agreement, contract for differences, basis
trade, purchase agreement, sale agreement, netting agreement, tolling agreement or any other
similar agreement, whether physical or financial, entered into with respect to any commodity
or commodity-related product.




     “Commodity Hedge Counterparty” means any Person that (a) (i) is a commercial bank,
insurance company, investment fund or other similar financial institution (including CS) or
any Affiliate thereof which is engaged in the business of entering into Commodity Hedge and
Power Sale Agreements, (ii) is a public utility or (iii) is in the business of selling,
marketing, purchasing, transporting, distributing or storing electric energy, fuel, oil,
natural gas or weather-related derivatives, as applicable, and (b) at the time the
applicable Permitted Commodity Hedge and Power Sale Agreement is entered into, has a
Required Rating.




     “Communications” has the meaning specified in Section 9.02(b).




     “Comparable Project” means one or more electric generating facilities that are of a
size and scope substantially similar to or greater than the Projects taken as a whole.




     “Confidential Information” means information that any Loan Party furnishes to any Agent
or any Lender Party designated as confidential, but does not include any such information
that is or becomes generally available to the public other than as a result of a breach by
such Agent or any Lender Party of its obligations hereunder or that is or becomes available
to such Agent or such Lender Party from a source other than the Loan Parties that is not, to
the best of such Agent’s or such Lender Party’s knowledge, acting in violation of a
confidentiality agreement with a Loan Party.




     “Consolidated” refers to the consolidation of accounts in accordance with GAAP.




     “Consolidated Adjusted EBITDA” means, for any period (without duplication), an amount
determined for the Borrower and its Subsidiaries on a Consolidated basis equal to (a) the
sum, without duplication, of the amounts for such period of (i) Consolidated Net Income,
(ii) Consolidated Cash Interest Expense, (iii) provisions for taxes based on income, (iv)
Cash proceeds of any Permitted Emissions Sales Gains, (v) total depreciation expense, (vi)
total amortization expense, (vii) other non-Cash items reducing Consolidated Net Income for
such period, including unrealized losses attributable to the change in fair market value of
all Commodity Hedge and Power Sale Agreements and Hedge Agreements and accruals for
liquidated damages and related late



7









 







fees associated with the Distrigas Litigation described in Schedule 4.01(g)
(excluding any such non-Cash item to the extent that it represents an accrual or reserve for
potential Cash items in any future period or amortization of a prepaid Cash item that was
paid in a prior period), minus (b) to the extent included in determining Consolidated Net
Income, other non-Cash items increasing Consolidated Net Income for such period, including
unrealized gains attributable to the changes in fair market value of all Commodity Hedge and
Power Sale Agreements and Hedge Agreements (excluding any such non-Cash item to the extent
it represents the reversal of an accrual or reserve for potential Cash items in any prior
period). For purposes of this definition, Consolidated Adjusted EBITDA for each of the
periods ending the last day of each of June, September and December 2006 shall be deemed to
be $57,250,000, $57,250,000 and $57,250,000, respectively.




     “Consolidated Cash Interest Expense” means, for any period, total interest expense
(including that portion attributable to Capitalized Leases in accordance with GAAP and
capitalized interest) of the Borrower and its Subsidiaries on a Consolidated basis with
respect to all outstanding Debt for Borrowed Money of the Borrower and its Subsidiaries for
such period, including all commissions, discounts and other fees and charges owed with
respect to letters of credit and net obligations under Hedge Agreements, but excluding,
however, (a) any amount for related late fees and interest associated with the Distrigas
Litigation described in Schedule 4.01(g), (b) interest payable under the Borrower’s
fuel oil inventory program permitted pursuant to Section 5.02(b)(v)(B) and (c)
interest and fees associated with RMR Revenues subject to refund. For purposes of
determining Consolidated Cash Interest Expense for any period ending prior to January 1,
2008, Consolidated Cash Interest Expense shall be deemed to be: (i) for the Fiscal Quarter
ending March 31, 2007, an amount equal to (x) actual Consolidated Cash Interest Expense for
such Fiscal Quarter multiplied by (y) four (4), (ii) for the two Fiscal Quarters ending June
30, 2007, an amount equal to (x) actual Consolidated Cash Interest Expense for such Fiscal
Quarters multiplied by (y) two (2), (iii) for the three Fiscal Quarters ending September 30,
2007, an amount equal to (x) actual Consolidated Cash Interest Expense for such Fiscal
Quarters multiplied by (y) four-thirds (4/3), and (iv) for the four Fiscal Quarters ending
December 31, 2007, actual Consolidated Cash Interest Expense for such Fiscal Quarters.




     “Consolidated Net Income” means, for any period, (a) the net income (or loss) of the
Borrower and its Subsidiaries on a Consolidated basis for such period determined in
conformity with GAAP, minus (b) to the extent otherwise included in Consolidated Net Income,
(i) the income of any Subsidiary of the Borrower to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to such
Subsidiary, (ii) any after-tax gains or losses attributable to Asset Sales or returned
surplus assets of any Plan, (iii) (to the extent not included in clauses (i) and
(ii) above) any net extraordinary gains or net extraordinary losses and (iv) income
attributable to the RMR Agreement (other than Permitted RMR Revenues) plus (c) without
duplication, Permitted RMR Revenues. In addition, Consolidated Net Income



8









 







for any period shall reflect expenses associated with long-term service agreements on
the basis of equivalent operating hours incurred during such period (instead of on the basis
of maintenance work performed during such period as required by GAAP).




     “Consolidated Total Debt” means, as at any date of determination, the aggregate stated
balance sheet amount of all Debt for Borrowed Money of the Borrower and its Subsidiaries
determined on a Consolidated basis in accordance with GAAP.




     “Contractual Obligations” means, as applied to any Person, any provision of any Equity
Interests issued by such Person or of any indenture, mortgage, deed of trust, contract,
undertaking, agreement or other instrument to which such Person is a party or by which it or
any of its Properties is bound.




     “Control” means, with respect to any Person, the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of such Person,
whether through the ability to exercise voting power, contract or otherwise. “Controlling”
and “Controlled” have meanings correlative thereto.




     “Conversion,” “Convert” and “Converted” each refer to a conversion of Loans of one Type
into Loans of the other Type pursuant to Section 2.09 or 2.10.




     “CS” has the meaning specified in the recital of parties to this Agreement.




     “Cure Notice” has the meaning specified in Section 5.04(c)(ii).




     “Debt” of any Person means, without duplication, (a) Debt for Borrowed Money of such
Person, (b) all obligations of such Person for the deferred purchase price of property or
services (other than trade payables not overdue (unless being contested in good faith by
appropriate proceedings for which reserves and other appropriate provisions, if any,
required by GAAP shall have been made) by more than 90 days incurred in the ordinary course
of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all obligations of such Person created or
arising under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession or sale of
such property), (e) all obligations of such Person as lessee under Capitalized Leases, (f)
all obligations of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Equity Interests in such Person or any other Person or any
warrants, rights or options to acquire such Equity Interests, valued, in the case of
Redeemable Preferred Interests, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends, (g) all obligations of such Person in respect
of Hedge Agreements and Commodity Hedge and Power Sale Agreements (valued at the Agreement
Value thereof), in each case, pursuant to an International Swap Dealers Association
agreement, form or other similar arrangement, (h) all Guaranteed Debt and Synthetic Debt of
such Person and (i) all indebtedness and other payment obligations referred to in
clauses (a) through (h) above



9









 







of another Person secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such indebtedness or other payment
obligations.




     “Debt for Borrowed Money” of any Person means, at any date of determination, the sum of
(a) all items that, in accordance with GAAP, would be classified as indebtedness on a
Consolidated balance sheet of such Person at such date, and (b) all Synthetic Debt of such
Person at such date; provided that with respect to each of clause (a) and (b) above, any
amounts associated with unutilized and undrawn amounts under the Synthetic L/C Facility and
the Revolving Credit Facility shall not be deemed Debt for Borrowed Money.




     “Declining Lender” has the meaning set forth in Section 2.06(c).




     “Default” means any Event of Default or any event that would constitute an Event of
Default but for the passage of time or the requirement that notice be given or both.




     “Default Interest” has the meaning set forth in Section 2.07(b).




     “Depositary” has the meaning specified in the Security Deposit Agreement.




     “Distribution” has the meaning set forth in the preliminary statements to this
Agreement.




     “Distrigas Guaranty” means the guaranty dated as of January 15, 2000, by Exelon New
England Holdings, LLC, a Delaware limited liability company, in favor of Distrigas of
Massachusetts Corporation and its successors.




     “Distrigas Litigation” means that certain case pending in the Suffolk County,
Massachusetts Superior Court (Civil Action No: 05-0764) entitled Distrigas of Massachusetts,
LLC v. Mystic Development and Exelon New England, LLC, as described in Schedule
4.01(g).




     “Dollars” and the sign “$” mean the lawful currency of the United States of America.




     “Domestic Lending Office” means, with respect to any Lender Party, the office of such
Lender Party specified as its “Domestic Lending Office” opposite its name on Schedule
I hereto or in the Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.



10









 






     “Early Termination Event” has the meaning specified in the Intercreditor Agreement.




     “EBG Holdings” means EBG Holdings LLC, a Delaware limited liability company.




     “EBG Holdings O&M Costs” has the meaning specified in the Security Deposit Agreement.




     “EBG Holdings Tax Liabilities” has the meaning specified in the Security Deposit
Agreement.




     “Effective Date” has the meaning specified in Section 3.01.




     “Eligible Assignee” means (a) a Lender Party; (b) an Affiliate of a Lender Party; (c)
an Approved Fund; and (d) any other Person (other than an individual) approved by (i) the
Administrative Agent, (ii) in the case of an assignment of a Synthetic L/C Deposit
Commitment, the Synthetic Issuing Bank and (iii) in the case of an assignment of a Revolving
Credit-Linked Deposit, the Fronting Bank (each such approval not to be unreasonably withheld
or delayed); provided, however, that (i) with respect to an assignment of a Synthetic L/C
Issuing Commitment, such Eligible Assignee must also be an Eligible Bank and (ii) no Loan
Party shall qualify as an Eligible Assignee under this definition.




     “Eligible Bank” means any bank or financial institution established under the laws of
the United States, any State thereof or any other country that is a member of the OECD which
has a long term unsecured non-credit enhanced rating of A3 or higher from Moody’s and A- or
higher from S&P.




     “Eligible Permitted Commodity Hedge and Power Sale Agreement” means any Permitted
Commodity Hedge and Power Sale Agreement entered into by any Loan Party which, at the time
such Permitted Commodity and Hedge and Power Sale Agreement is entered into, is structured
such that the Commodity Hedge Counterparty’s credit exposure and active or projected
mark-to-market exposure to the Borrower or any other Loan Party is positively correlated
with the price of the relevant commodity (including “spark spread”), including the Initial
Commodity Hedge and Power Sale Agreement.




     “Environmental Action” means any action, suit, demand, demand letter, claim, written
notice of non compliance or violation, written notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any way to any
Environmental Law, any Environmental Permit or Hazardous Material including, without
limitation, (a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any governmental or
regulatory authority or third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.



11









 






     “Environmental Law” means any Federal, state or local statute, law, ordinance, rule,
regulation, code, order, writ, judgment, injunction or decree relating to pollution or
protection of the environment or, as such relates to exposure to Hazardous Materials, health
or natural resources, including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.




     “Environmental Permit” means any permit, approval, identification number, license or
other authorization required under any Environmental Law.




     “Equity Cure” has the meaning specified in Section 5.04(c).




     “Equity Interests” means, with respect to any Person, shares of capital stock of (or
other ownership or profit interests in) such Person, warrants, options or other rights for
the purchase or other acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, securities convertible into or exchangeable
for shares of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or other acquisition from such Person of such
            shares (or such other interests), and other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights or other
interests are authorized or otherwise existing on any date of determination.




     “Equity Issuance” has the meaning specified in the Security Deposit Agreement.




     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.




     “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member
of the controlled group of any Loan Party, or under common control with any Loan Party,
within the meaning of Section 414(b) or (c) of the Internal Revenue Code.




     “ERISA Event” means (a)(i) the occurrence of a reportable event, within the meaning of
Section 4043 of ERISA, with respect to any Plan unless the 30 day notice requirement with
respect to such event has been waived by the PBGC or (ii) the requirements of Section
4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12)
or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such
Plan within the following 30 days; (b) the application for a minimum funding waiver with
respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA
Affiliate



12









 







from a Multiple
Employer Plan during a plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under Section
302(f) of ERISA shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307
of ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042
of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to
administer, such Plan.




     “Eurocurrency Liabilities” has the meaning specified in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time to time.




     “Eurodollar Lending Office” means, with respect to any Lender Party, the office of such
Lender Party specified as its “Eurodollar Lending Office” opposite its name on Schedule
I hereto or in the Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to the Borrower and the
Administrative Agent.




     “Eurodollar Rate” means, for any Interest Period for all Eurodollar Rate Advances
comprising part of the same Borrowing, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the rate per annum determined by the Administrative Agent by
reference to the British Bankers’ Association Interest Settlement Rates for deposits in
Dollars (as set forth by the Bloomberg Information Service or any successor thereto or any
other service selected by the Administrative Agent which had been nominated by the British
Bankers’ Association as a authorized information vendor for the purpose of displaying such
rates) as the London interbank offered rate for deposits in U.S. dollars at 11:00 A.M.
(London time) two Business Days before the first day of such Interest Period for a period
equal to such Interest Period (provided that, if for any reason such rate is not available,
the term “Eurodollar Rate” shall mean, for any Interest Period, the rate per annum
determined by the Administrative Agent to be the average of the rates per annum at which
deposits in Dollars are offered to major banks in the London interbank market in London,
England at approximately 11:00 A.M. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period) by (b) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period.




     “Eurodollar Rate Loan” means a Loan that bears interest as provided in Section
2.07(a)(ii).




     “Eurodollar Rate Reserve Percentage” for any Interest Period for all Eurodollar Rate
Loans comprising part of the same Borrowing, any Interest Period for the Revolving
Credit-Linked Deposits or any Investment Period for the Synthetic L/C Deposits means the
reserve percentage applicable two Business Days before the first day of such Interest Period
or Investment Period, as applicable, under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) for determining



13









 







the maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate Loans, Revolving
Credit-Linked Deposits or Synthetic L/C Deposits is determined) having a term equal to such
Interest Period.




     “Event of Eminent Domain” has the meaning specified in the Security Deposit Agreement.




     “Events of Default” has the meaning specified in Section 6.01.




     “EWG” has the meaning specified in Section 4.01(v).




     “Excess Duration Transaction” has the meaning specified in Section 5.02(l).




     “Excluded Property” has the meaning specified in the Intercreditor Agreement.




     “Existing Credit Agreements” means, collectively, (i) the Amended and Restated First
Lien Credit and Reimbursement Agreement dated as of October 11, 2005 among the Borrower, the
First Lien Term Lenders named therein, the Working Capital Lenders named therein, the LC
Lenders named therein, the LC-DSR Lenders named therein, CS, as First Lien Administrative
Agent and CS, as Collateral Agent and (ii) the Amended and Restated Second Lien Credit and
Reimbursement Agreement dated as of October 11, 2005 among the Borrower, the Second Lien
Lenders named therein, CS, as Second Lien Administrative Agent and CS, as Collateral Agent.




     “Existing Debt” means Debt of each Loan Party outstanding immediately before the
occurrence of the Effective Date.




     “Existing Letters of Credit” means each letter of credit set forth on Schedule
2.03(i).




     “Facility” means the Term B Facility, the Synthetic L/C Deposit Facility, the Synthetic
L/C Facility or the Revolving Credit Facility, as the context may require.




     “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal
for each day during such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for such day for
such transactions received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.



14









 






     “Fee Letter” means the fee letter dated November 20, 2006 between the Borrower and CS
as Administrative Agent and First Lien Collateral Agent, as amended.




     “FERC” means the Federal Energy Regulatory Commission and its successors.




     “Financial Covenants” has the meaning specified in Section 5.04(c).




     “First Lien Collateral Agent” has the meaning specified in the recital of parties to
this Agreement.




     “First Lien Collateral Documents” means the First Lien Pledge Agreement, First Lien
Security Agreement, the Security Deposit Agreement, the First Lien Mortgages, each First
Lien Consent and Agreement, each of the collateral documents, instruments and agreements
delivered pursuant to Section 5.01(j), and each other agreement that creates or
purports to create a Lien in favor of the First Lien Collateral Agent for the benefit of the
First Lien Secured Parties.




     “First Lien Consent and Agreement” means (a) with respect to the Initial Commodity
Hedge and Power Sale Agreement, a consent and agreement in substantially the form attached
hereto as Exhibit F-1, and (b) with respect to any Material Contract entered into
after the Effective Date, (i) if such Material Contract is a Permitted Commodity Hedge and
Power Sale Agreement, a consent and agreement in favor of the First Lien Collateral Agent
(for the benefit of the First Lien Secured Parties) in substantially the form attached
hereto as Exhibit F-1 and (ii) in the case of any other such Material Contract, a
consent and agreement in favor of the First Lien Collateral Agent (for the benefit of the
First Lien Secured Parties) in substantially the form attached hereto as Exhibit F-2
or, in either case, otherwise in form and substance reasonably satisfactory to the First
Lien Collateral Agent and the Administrative Agent.




     “First Lien Debt Service Reserve Requirement” means (a) on the Effective Date,
$53,300,000 and (b) on any date of determination occurring after the Effective Date, an
amount equal to 100% of the sum of the reasonably anticipated aggregate scheduled principal
pursuant to Section 2.04(a) other than with respect to such principal payable on the
Term B Maturity Date, interest and fees (including Participation Fees and other fees payable
pursuant to Section 2.08) payable during the following six month period occurring
after such date of determination in respect of the Facilities.




     “First Lien Mortgage Policies” has the meaning specified in Section
3.01(a)(iv)(C).




     “First Lien Mortgages” has the meaning specified in Section 3.01(a)(iv) and
shall include any other deed of trust, trust deed, mortgage, leasehold mortgage or leasehold
deed of trust delivered from time to time after the date hereof pursuant to Section
5.01(j), in each case as amended.



15









 






     “First Lien Obligations” has the meaning specified in the Intercreditor Agreement.




     “First Lien Pledge Agreement” means that certain First Lien Pledge Agreement
substantially in the form attached hereto as Exhibit L and dated as of December 21,
2006 by EBG Holdings in favor of the First Lien Collateral Agent for the benefit of the
First Lien Secured Parties, as amended.




     “First Lien Secured Parties” has the meaning specified in the Intercreditor Agreement.




     “First Lien Security Agreement” means that certain First Lien Security Agreement
substantially in the form attached hereto as Exhibit K and dated December 21, 2006
by the Borrower and the Guarantors in favor of the First Lien Collateral Agent for the
benefit of the First Lien Secured Parties, as amended.




     “First Offer” has the meaning specified in Section 2.06(c).




     “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.




     “Fiscal Year” means a fiscal year of the Borrower and its Subsidiaries ending on
December 31 of each calendar year.




     “Fore River” means Fore River Development, LLC, a Delaware limited liability company.




     “Fore River Project” means a combined-cycle electric generating facility in Weymouth
and Quincy, Massachusetts and owned by Fore River with a nominal capacity of 807 MW in
operation.




     “FPA” means the Federal Power Act, as amended.




     “Fronting Bank” means CS, as the Lender of Revolving Credit Loans.




     “Fund” means any Person (other than an individual) that is or will be engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course.




     “Funded Revolving Credit Loan” has the meaning specified in Section 2.18(c).




     “Funding Account” has the meaning specified in the Security Deposit Agreement.




     “GAAP” has the meaning specified in Section 1.03.




     “Governmental Authority” means any nation or government, any state, province, city,
municipal entity or other political subdivision thereof, and any governmental,



16









 







executive, legislative, judicial, administrative or regulatory agency, department,
authority, instrumentality, commission, board, bureau or similar body, whether federal,
state, provincial, territorial, local or foreign.




     “Governmental Authorization” means any authorization, approval, consent, franchise,
license, covenant, order, ruling, permit, certification, exemption, notice, declaration or
similar right, undertaking or other action of, to or by, or any filing, qualification or
registration with, any Governmental Authority.




     “Granting Lender” has the meaning specified in Section 9.07(l).




     “Guaranteed Debt” means, with respect to any Person, any obligation or arrangement of
such Person to guarantee or intended to guarantee any Debt (“primary obligations”) of any
other Person (the “primary obligor”) in any manner, whether directly or indirectly,
including, without limitation, (a) the direct or indirect guarantee, endorsement (other than
for collection or deposit in the ordinary course of business), co making, discounting with
recourse or sale with recourse by such Person of the obligation of a primary obligor, (b)
the obligation to make take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement or (c) any obligation of such
Person, whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or supply funds
(A) for the purchase or payment of any such primary obligation or (B) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, assets, securities or services
primarily for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the holder of such primary obligation against loss in respect
thereof. The amount of any Guaranteed Debt shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such Guaranteed
Debt is made (or, if less, the maximum amount of such primary obligation for which such
Person may be liable pursuant to the terms of the instrument evidencing such Guaranteed
Debt) or, if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder), as determined by
such Person in good faith.




     “Guaranteed Obligations” has the meaning specified in Section 8.01.




     “Guarantors” means BG Boston Services, LLC, BG New England Power Services, Inc. and
each of the Project Companies and each other Person becoming a party hereto pursuant to
Section 5.01(k) by the execution and delivery of a Joinder Agreement substantially
in the form attached hereto as Exhibit J.




     “Guaranty” means the guaranty of the Guarantors set forth in Article VIII.



17









 






     “Hazardous Materials” means (a) petroleum or petroleum products, by-products or
breakdown products, radioactive materials, asbestos-containing materials and polychlorinated
biphenyls and (b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental
Law.




     “Hedge Agreements” means interest rate swap, cap or collar agreements, interest rate
future or option contracts, currency swap agreements, currency future or option contracts
and other hedging agreements but excluding any Commodity Hedge and Power Sale Agreement.




     “Hedge Bank” means any Person that is a commercial bank, insurance company or other
similar financial institution, or any Affiliate thereof, that (a) is engaged in the business
of entering into interest rate Hedge Agreements and (b) at the time the applicable Hedge
Agreement is entered into, has a Required Rating.




     “Honor Date” has the meaning specified in Section 2.03(d)(i).




     “Indemnified Costs” has the meaning specified in Section 7.05.




     “Indemnified Party” has the meaning specified in Section 9.04(b).




     “Independent Engineer” means any independent consulting engineer reasonably acceptable
to the Administrative Agent retained on behalf of or for the benefit of the Lender Parties
from time to time, including, as of the date hereof, Black & Veatch Corporation.




     “Independent Insurance Consultant” means any independent insurance consultant
reasonably acceptable to the Administrative Agent retained on behalf of or for the benefit
of the Lender Parties from time to time, including, as of the date hereof, ARM Tech, a
division of AON Risk Services, Inc.




     “Independent Power Market Consultant” means any independent power market consultant
reasonably acceptable to the Administrative Agent retained on behalf of or for the benefit
of the Lender Parties from time to time, including, as of the date hereof, Navigant
Consulting, Inc.




     “Initial Banks” means the Administrative Agent, the First Lien Collateral Agent, the
Synthetic Issuing Bank, each Co-Syndication Agent, each Co-Documentation Agent, each Joint
Book Running Manager and each Joint Lead Arranger.




     “Initial Commodity Hedge and Power Sale Agreements” means, collectively:




     (a) the ISDA Master Agreement dated as of November 20, 2006 between Credit
Suisse Energy LLC and Boston Generating, LLC;



18









 






     (b) the Schedule to the 1992 ISDA Master Agreement dated as of November 20,
2006 between Credit Suisse Energy LLC and Boston Generating, LLC;




     (c) two Confirmations to Credit Suisse Energy LLC Re: Financial Put Swaption
 — Cash Settled dated as of November 20, 2006 between Credit Suisse Energy LLC and
Boston Generating, LLC; and




     (d) two Confirmations to Credit Suisse Energy LLC Re: Financial Swap — Cash
Settled dated as of November 20, 2006 between Credit Suisse Energy LLC and Boston
Generating, LLC;




     in each case as amended.




     “Initial Extension of Credit” means the earlier to occur of the initial Borrowing and
the initial issuance of a Synthetic Letter of Credit hereunder.




     “Initial Lender Parties” means the Initial Synthetic Issuing Banks and the Initial
Lenders.




     “Initial Lenders” means the banks, financial institutions and other institutional
lenders listed on the signature pages hereof as the Initial Lenders.




     “Initial Operating Budget” has the meaning specified in Section 3.01(a)(xiii).




     “Initial Synthetic Issuing Bank” means the bank listed on the signature pages hereof as
the Initial Synthetic Issuing Bank.




     “Insufficiency” means, with respect to any Plan, the amount, if any, of its unfunded
benefit liabilities, as defined in Section 4001(a)(18) of ERISA.




     “Insurance Proceeds” has the meaning set forth in the Security Deposit Agreement.




     “Intercreditor Agreement” means that certain Collateral Agency and Intercreditor
Agreement substantially in the form attached hereto as Exhibit G, dated as of
December 21, 2006, by and among the Borrower, the Guarantors, EBG Holdings, the First Lien
Collateral Agent, the Second Lien Collateral Agent, First Lien Administrative Agent, CS, as
Second Lien Administrative Agent, certain Commodity Hedge Counterparties and the other
Persons party thereto from time to time, as amended.




     “Interest Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of
(a) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ended to (b)
Consolidated Cash Interest Expense for such four-Fiscal Quarter period.




     “Interest Period” means, for each Eurodollar Rate Loan comprising part of the same
Borrowing, the period commencing on the date of such Eurodollar Rate Loan or the



19









 







date of the Conversion of any Base Rate Loan into such Eurodollar Rate Loan, and ending
on the last day of the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the Borrower pursuant
to the provisions below. The duration of each such Interest Period shall be one, two, three
or six months, or, if available to each Appropriate Lender, nine or twelve months or such
other period acceptable to the Administrative Agent, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the first day of such Interest Period, select; provided,
however, that:




     (a) the Borrower may not select any Interest Period with respect to any
Eurodollar Rate Loan under a Facility that ends after any principal repayment
installment date for such Facility unless, after giving effect to such selection,
the aggregate principal amount of Base Rate Loans and of Eurodollar Rate Loans
having Interest Periods that end on or prior to such principal repayment installment
date for such Facility shall be at least equal to the aggregate principal amount of
Loans under such Facility due and payable on or prior to such date;




     (b) [Reserved]




     (c) whenever the last day of any Interest Period would otherwise occur on a day
other than a Business Day, the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day;




     (d) whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month; and




     (e) the Borrower shall not be permitted to select Interest Periods to be in
effect at any one time which have expiration dates occurring on more than twelve
different dates (it being understood that there shall not be more than twelve
contracts in respect of Eurodollar Rate Loans in effect at any one time).




     “Interest Rate Determination Date” means, with respect to any Interest Period, the date
that is two (2) Business Days prior to the first day of such Interest Period.




     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.



20









 






     “Investment” in any Person means any loan or advance to such Person, any purchase or
other acquisition of any Equity Interests or Debt or the assets comprising a division or
business unit or a substantial part or all of the business of such Person, any capital
contribution to such Person or any other direct or indirect investment in such Person,
including, without limitation, any acquisition by way of a merger or consolidation (or
similar transaction) and any arrangement pursuant to which the investor incurs Debt of the
types referred to in clause (h) or (i) of the definition of “Debt” in
respect of such Person.




     “Investment Period” means, relative to any Synthetic L/C Deposits earning a
Participation Fee, the period beginning on (and including) the date on which such Synthetic
L/C Deposit is deposited or on the last day of the preceding Investment Period and ending on
(but excluding) the last Business Day of each March, June, September and December; provided,
however, that (a) if any such Investment Period would otherwise end on a day which is not a
Business Day, such Investment Period shall end on the preceding Business Day and (b) the
first Investment Period after the Effective Date shall be comprised of the period beginning
on (and including) the Effective Date and ending on March 30, 2007.




     “Joinder Agreement” means a Joinder Agreement substantially in the form of Exhibit
J.




     “Joint Book Running Managers” has the meaning specified in the recital of parties to
this Agreement.




     “Joint Lead Arrangers” has the meaning specified in the recital of parties to this
Agreement.




     “K Road Manager” means K Road BG Management, LLC, a Delaware limited liability company.




     “L/C Related Documents” has the meaning specified in Section 2.03(g)(i).




     “Lender Party” means any Lender, any Fronting Bank or any Synthetic Issuing Bank.




     “Lenders” means the Initial Lenders and each Person that shall become a Lender
hereunder pursuant to Section 9.07 for so long as such Initial Lender or Person, as
the case may be, shall be a party to this Agreement.




     “Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (a)
Consolidated Total Debt as of such day to (b) Consolidated Adjusted EBITDA for the
four-Fiscal Quarter period ending on such date.




     “Lien” means, with respect to any Property, (a) any mortgage, deed of trust, deed to
secure debt, lien (statutory or otherwise), pledge, hypothecation, encumbrance,



21









 







collateral assignment, charge or security interest in, on or of such Property, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or
title retention agreement (or any financing lease having substantially the same economic
effect as any of the foregoing), relating to such Property, and (c) in the case of Equity
Interests or debt securities, any purchase option, call or similar right of a third party
with respect to such Equity Interests or debt securities. For the avoidance of doubt,
“Lien” shall not include any netting or set-off arrangements under any Contractual
Obligation (other than Contractual Obligations constituting Debt for Borrowed Money or
having the effect of Debt for Borrowed Money) otherwise permitted under the terms of the
Loan Documents.




     “Loan” means a Term B Loan, a Revolving Credit Loan or a Synthetic L/C Loan, as the
context may require.




     “Loan Documents” means (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the
Intercreditor Agreement, (e) the First Lien Collateral Documents and (f) the Fee Letter, in
each case as amended.




     “Loan Parties” means the Borrower and the Guarantors.




     “Local Accounts” has the meaning specified in the Security Deposit Agreement.




     “Management and Operation Agreements” means each of the Management and Operation
Agreements each dated as of October 11, 2005 between K Road Manager and each of the Borrower
and the Project Companies.




     “Margin Stock” has the meaning specified in Regulation U.




     “Material Adverse Change” means any change, occurrence or development (including,
without limitation, as a result of regulatory changes applicable to the Borrower or any of
its Subsidiaries) that has had or could reasonably be expected to have a Material Adverse
Effect.




     “Material Adverse Effect” means a material adverse effect on (a) the condition
(financial or otherwise), business, results or operations of the Borrower and its
Subsidiaries, taken as a whole, (b) the rights and remedies of any Agent or the Lender
Parties, taken as a whole, under any Loan Document or (c) the ability of the Loan Parties to
perform their respective Obligations under the Loan Documents.




     “Material Contract” means (a) each of the agreements set forth on Schedule
4.01(t), (b) any Permitted Commodity Hedge and Power Sale Agreement with a term in
excess of 14 months after the first delivery or settlement thereunder, and (c) any other
Contractual Obligation (other than the Loan Documents or any Related Document) entered into
after the date hereof by any Loan Party for which breach, nonperformance or cancellation
could reasonably be expected to have a Material Adverse Effect.



22









 






     “Mezzanine Documents” means the Credit Agreement dated as of December 21, 2006 among
EBG Holdings, the financial institutions and lenders party thereto from time to time and CS,
as administrative agent and each of the other Loan Documents referred to therein (other than
the Fee Letter referred to therein).




     “Moody’s” means Moody’s Investors Services, Inc.




     “Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to
make contributions, or has within any of the preceding five plan years made or accrued an
obligation to make contributions.




     “Multiple Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates or
(b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were
to be terminated.




     “Mystic 8&9 Project” means two (2) combined-cycle electric generating facilities with a
combined nominal capacity of 1614 MW in operation in Everett, Massachusetts owned by Mystic
Development.




     “Mystic Development” means Mystic Development, LLC, f/k/a Exelon Mystic Development
LLC, a Delaware limited liability company.




     “Mystic I” means Mystic I, LLC, a Delaware limited liability company.




     “Mystic Station Project” means an electric generating facility with a nominal capacity
of 576 MW in operation in Everett, Massachusetts and owned by Mystic I.




     “Net Cash Proceeds” has the meaning specified in the Security Deposit Agreement.




     “Non-Consenting Lender” has the meaning specified in Section 9.01(c).




     “Note” means a Term Note, a Revolving Credit Note or a Synthetic L/C Note, as the
context may require.




     “Notice of Borrowing” has the meaning specified in Section 2.02(a).




     “Notice of Issuance” has the meaning specified in Section 2.03(a).




     “Notice of Renewal” has the meaning specified in Section 2.01(d)(iii).




     “Notice of Termination” has the meaning specified in Section 2.01(d)(iii).



23









 






     “NPL” means the National Priorities List under CERCLA.




     “Obligation” means all payment obligations of every nature of each Loan Party from time
to time owed to any Agent (including former Agents) or any Lender Party from time to time
under any Loan Document, whether for principal, interest (including interest which, but for
the filing of a petition in bankruptcy with respect to such Loan Party, would have accrued
on any Obligation, whether or not a claim is allowed against such Loan Party for such
interest in the related bankruptcy proceeding), reimbursement of amounts drawn under
Synthetic Letters of Credit, fees (including Participation Fees and other fees payable
pursuant to Section 2.08), expenses, indemnification or otherwise.




     “Offer Period” has the meaning specified in Section 2.15(a).




     “Other Taxes” has the meaning specified in Section 2.12(b).




     “Participation Fee” has the meaning specified in Section 2.08(b)(ii).




     “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into
law October 26, 2001.




     “PBGC” means the Pension Benefit Guaranty Corporation (or any successor).




     “Permitted Commodity Hedge and Power Sale Agreement” means (a) Permitted Trading
Activity entered into by any Loan Party and a Commodity Hedge Counterparty, including,
without limitation, the Initial Commodity Hedge and Power Sale Agreements and (b) the
transactions pursuant to each of the Material Contracts set forth on Part II of Schedule
4.01(t) (as amended, modified or replaced).




     “Permitted Development” means, after the Effective Date, the development or
construction of any electric generating facility; provided that at the time any amount is
invested (or committed to be invested) in respect of Permitted Developments that exceeds
amounts permitted to be invested pursuant to Section 5.02(f)(ix) each of the
following conditions are met:




     (a) the Permitted Development is financed with amounts permitted pursuant to
Sections 5.02(b)(iii) and 5.02(f)(viii);




     (b) the Independent Engineer shall have certified that any such development or
construction would not reasonably be expected to materially and adversely impact the
operation of the Projects or the efficient generation and distribution of
electricity from the Projects (both during and after such development or
construction) and shall have confirmed to the Lenders that amounts invested and
committed to be invested by the Borrower and the Guarantors are sufficient to pay
for all costs associated therewith; and



24









 






     (c) each of S&P and Moody’s shall have provided written confirmation of their
respective ratings of the Facilities (as in effect immediately prior to giving
effect to such Permitted Development).




     “Permitted Development Subsidiary” means any Subsidiary of a Loan Party created in
connection with any Permitted Development.




     “Permitted Emissions Sales Gains” means gains (determined in accordance with GAAP) from
the sales of Accumulated Emissions Credits to the extent such proceeds are deposited into
the Revenue Account in accordance with the Security Deposit Agreement.




     “Permitted Encumbrances” means the Liens and encumbrances of record identified in the
First Lien Mortgage Policies as of the Effective Date.




     “Permitted Liens” means (a) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.01(b); (b) Liens
imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s
Liens and other similar Liens arising in the ordinary course of business (i) for amounts
that are not overdue or (ii) for amounts that are overdue that (A) do not materially
adversely affect the use of, and which do not individually or in the aggregate materially
affect the value of, the Property to which they relate or (B) are bonded or are being
contested in good faith by appropriate proceedings for which reserve and other appropriate
provisions, if any, required by GAAP shall have been made; (c) pledges or deposits in the
ordinary course of business to secure obligations under workers’ compensation, unemployment
insurance, social security legislation or other similar legislation or to secure public or
statutory obligations; (d) deposits to secure the performance of bids, trade contracts and
leases (other than Debt), statutory obligations, surety bonds (other than bonds related to
judgments or litigation), performance bonds and other obligations of a like nature incurred
in the ordinary course of business; (e) Liens arising from judgments (or the payment of
money not constituting a Default under Section 6.01(h)) or securing appeal or other
surety bonds related to such judgments; (f) Permitted Encumbrances; and (g) easements,
rights-of-way, restrictions, encroachments and other minor defects or irregularities in
title and any zoning (or other similar restrictions to, or vested in, any governmental
office or agency to control or regulate the use of any Real Property), that individually or
in the aggregate do not materially adversely affect the value of said Real Property or
materially impair the ability of the Loan Parties to operate the Real Property to which they
relate in the ordinary course of business.




     “Permitted RMR Revenues” means, for any period, funds transferred to the Revenue
Account pursuant to Section 3.15(a)(iv) of the Security Deposit Agreement; provided that for
purposes of determining the applicable Fiscal Quarter to which such funds will be included
in Consolidated Net Income, funds transferred within 45 days following any Fiscal Quarter
shall be deemed, at the option of the Borrower, to be included (without duplication) in
Consolidated Net Income for such Fiscal Quarter or the immediately preceding Fiscal Quarter.



25









 






     “Permitted Trading Activity” means the entry into of any Commodity Hedge and Power Sale
Agreement in a manner consistent with Prudent Industry Practice from time to time in support
of the marketing and trading related to the Projects or any Permitted Development, whether
physical or financial, in each case, to the extent such activity is conducted in the
ordinary course of business of the Borrower and the other Loan Parties.




     “Person” means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency thereof.




     “Plan” means a Single Employer Plan or a Multiple Employer Plan.




     “Platform” has the meaning specified in Section 9.02(b).




     “Pledged Debt” has the meaning specified in the First Lien Security Agreement.




     “Preferred Interests” means, with respect to any Person, Equity Interests issued by
such Person that are entitled to a preference or priority over any other Equity Interests
issued by such Person upon any distribution of such Person’s property and assets, whether by
dividend or upon liquidation.




     “Prepayment Account” has the meaning specified in the Security Deposit Agreement.




     “Prepayment Amount” has the meaning specified in Section 2.06(c).




     “Pro Rata Share” of any amount means, (a) with respect to any Revolving Credit Lender
at any time and with respect to the Revolving Credit Facility, the product of such amount
times a fraction the numerator of which is the amount of such Lender’s Revolving Credit
Commitment at such time and the denominator of which is the aggregate amount of the
Revolving Credit Facility at such time, (b) with respect to any Term B Lender at any time
and with respect to the Term B Facility, the product of such amount times a fraction the
numerator of which is the amount of Loans owed to such Term B Lender under the Term B
Facility at such time and the denominator of which is the aggregate amount of the Loans then
outstanding and owed to all Term B Lenders under the Term B Facility at such time and (c)
with respect to any Synthetic L/C Lender at any time and with respect to the Synthetic L/C
Facility, the product of such amount times a fraction the numerator of which is the amount
of the sum of the Synthetic L/C Loans owed to such Synthetic L/C Lender under the Synthetic
L/C Facility at such time plus the amount of such Synthetic L/C Lender’s Synthetic L/C
Deposit at such time and the denominator of which is the aggregate amount of the Synthetic
L/C Loans then outstanding and owed to all Synthetic L/C Lenders under such Synthetic L/C
Facility at such time plus the amount of all Synthetic L/C Deposits in respect of such
Synthetic L/C Facility at such time.



26









 






     “Project Company” means each of Mystic I, Mystic Development and Fore River (and
collectively, the “Project Companies”).




     “Projects” means Mystic Station Project, Mystic 8&9 Project, Fore River Project and, if
applicable, the Permitted Development.




     “Property” means any right or interest in or to any asset or property of any kind
whatsoever (including Equity Interests), whether real, personal or mixed and whether
intangible or tangible.




     “Prudent Industry Practice” means those practices, methods, equipment, specifications
and standards of safety and performance, as are commonly used by electric generating
stations in the United States utilizing comparable fuels as good, safe and prudent
engineering practices would dictate in connection with the design, construction, operation,
maintenance, repair and use of electrical and other equipment, facilities and improvements
of such electrical generating stations, with commensurate standards of safety, performance,
dependability (including the implementation of procedures that shall not adversely affect
the long term reliability of the Projects, in favor of short term performance), efficiency
and economy, in each such case as the same may evolve from time to time, consistent with
applicable law and considering the state in which a Project is located and the type and size
of such Project. “Prudent Industry Practice” as defined herein does not necessarily mean
one particular practice, method, equipment specification or standard in all cases, but is
instead intended to encompass a broad range of acceptable practices, methods, equipment
specifications and standards.




     “PUHCA” has the meaning specified in Section 4.01(v).




     “Pullback Amount” means, for any Fiscal Year, the amount (not to exceed $10,000,000) of
the Base Capex Allowance for the following Fiscal Year which the Borrower, in its sole
discretion, allocates to Capital Expenditures in the current Fiscal Year.




     “Qualified Owner” means any Person (including any Person Controlled by such Person)
that (a) is a past or present owner of a Comparable Project, (b) has substantial experience
as an operator of a Comparable Project or (c) has contracted for the operation of the
Projects by K Road Manager or by a Person meeting the requirements of clause (b) of this
definition.




     “Real Properties” means each item of Property listed on Schedules 4.01(r) and
4.01(s) hereto and any other real property subsequently acquired by any Loan Party
covered by Section 5.01(j) hereof.




     “Redeemable” means, with respect to any Equity Interest, any such Equity Interest that
(a) the issuer has undertaken to redeem at a fixed or determinable date or dates, whether by
operation of a sinking fund or otherwise, or upon the occurrence of a



27









 







condition not solely within the control of the issuer or (b) is redeemable at the
option of the holder.




     “Register” has the meaning specified in Section 9.07(e).




     “Regulation U” means Regulation U of the Board of Governors of the Federal Reserve
System, as in effect from time to time.




     “Related Documents” means the Initial Commodity Hedge and Power Sale Agreements, the
Second Lien Loan Documents, the Mezzanine Documents and the Secured Hedge Agreements.




     “Related Fund” means, with respect to any Lender that is a Fund, any other Fund that is
advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity (or
an Affiliate of such entity) that administers, advises or manages such Lender.




     “Repayment Event” means the satisfaction of the following conditions: (a) the
repayment in full in Cash of all of the outstanding principal amount of the Loans and all
other Obligations (other than contingent Obligations) due and payable under the Loan
Documents, (b) the termination of all Commitments and (c) the termination and cancellation
of all Synthetic Letters of Credit (unless such Synthetic Letters of Credit are cash
collateralized on terms, conditions and amounts (but no more than 103.0% of the Available
Amount of such Synthetic Letters of Credit) reasonably satisfactory to the Administrative
Agent and the Synthetic Issuing Bank).




     “Replacement Commodity Hedge and Power Sale Agreement” means, with respect to any
Initial Commodity Hedge and Power Sale Agreement and the Eligible Permitted Commodity Hedge
and Power Sale Agreement required pursuant to Section 5.01(s), any Eligible
Permitted Commodity Hedge and Power Sale Agreement entered into by any Loan Party after the
date hereof: (a) with a termination date that is no earlier than the termination date of
the relevant Eligible Permitted Commodity Hedge and Power Sale Agreement it replaces; (b)
that is otherwise on terms substantially consistent with, or more favorable to the Loan
Parties than, the relevant Eligible Permitted Commodity Hedge and Power Sale Agreement it
replaces; and (c) with respect to which the Borrower has delivered to the Administrative
Agent amended projections giving pro forma effect to such replacement Eligible Permitted
Commodity Hedge and Power Sale Agreement prepared in good faith based on reasonable
assumptions in light of the conditions existing at such time and showing to the reasonable
satisfaction of the Administrative Agent compliance with Section 5.04 at all times
until the earlier of (i) the Term B Maturity Date or (ii) the termination date applicable to
such replacement Eligible Permitted Commodity Hedge and Power Sale Agreement.




     “Replacement Material Contract” shall mean any one or more contracts entered into in
replacement of an existing Material Contract (i) with terms taken as a whole, as favorable
to the Loan Parties as can be obtained based on market conditions prevailing at such time
and (ii) with one or more counterparties (including any guarantor of, or letter of



28









 







credit or other credit support providers to, such counterparty’s obligations) having
substantially similar creditworthiness on the date of such replacement as the counterparty
to the Material Contract being replaced.




     “Required Lenders” means, at any time, Lenders owed or holding more than 50% of the sum
of (without duplication) (a) the aggregate principal amount of the Loans outstanding at such
time plus (b) the aggregate Available Amount of all Synthetic Letters of Credit outstanding
at such time plus (c) the aggregate amount of all Unused Working Capital Commitments at such
time plus (d) the aggregate amount of the Synthetic L/C Deposits at such time.




     “Required Rating” means with respect to (a) any Commodity Hedge Counterparty that is
described in clause (a)(i) of the definition of “Commodity Hedge Counterparty” or
any Hedge Bank either (i) the unsecured senior debt obligations of such Person are rated at
least A3 by Moody’s and at least A- by S&P or (ii) such Person’s obligations under any
applicable Permitted Commodity Hedge and Power Sale Agreement or Secured Hedge Agreement, as
the case may be, are guaranteed by (or supported by a letter of credit provided by) a Person
whose unsecured senior debt obligations are rated at least A3 by Moody’s and at least A- by
S&P and (b) any other Commodity Hedge Counterparty either (i) the unsecured senior debt
obligations of such Person are rated at least Baa3 by Moody’s and at least BBB- by S&P, (ii)
such Commodity Hedge Counterparty’s obligations under any applicable Permitted Commodity
Hedge and Power Sale Agreement are guaranteed by a Commodity Hedge Counterparty that is
described in clause (a)(ii) of the definition of “Commodity Hedge Counterparty”
whose unsecured senior debt obligations are rated at least Baa3 by Moody’s and at least BBB-
by S&P or (iii) such Commodity Hedge Counterparty’s obligations under any applicable
Permitted Commodity Hedge and Power Sale Agreement are supported by a letter of credit
provided by a Person whose unsecured senior debt obligations are rated at least A3 by
Moody’s and at least A- by S&P.




     “Responsible Officer” means, as to any Person, any individual holding the position of
chairman of the board (if an officer), president, chief executive officer, senior vice
president, treasurer, chief financial officer or director of finance.




     “Revenue Account” has the meaning specified in the Security Deposit Agreement.




     “Revolving Credit Availability Period” means the period from and including the
Effective Date to but excluding the earlier of the Revolving Credit Termination Date and the
date of termination of the Revolving Credit Commitments.




     “Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving
Credit Loans of the same Type made by the Revolving Credit Lenders.




     “Revolving Credit Commitment” means, with respect to each Revolving Credit Lender, the
amount that such Revolving Credit Lender is required hereby to maintain as



29









 







its Revolving Credit-Linked Deposit, as such amount may be reduced or increased from
time to time pursuant to Section 2.05 and Section 2.18(c) and through
assignments by or to such Lender pursuant to Section 9.07. The initial amount of
each Revolving Credit Lender’s Revolving Credit Commitment is set forth in an Assignment
Agreement pursuant to which such Lender shall have assumed its Revolving Credit Commitment,
as applicable. The aggregate amount of the Revolving Credit Lenders’ Revolving Credit
Commitments is $70,000,000.




     “Revolving Credit Exposure” means, with respect to any Revolving Credit Lender at any
time, its Applicable Revolving Credit Percentage of the outstanding principal amount of the
Revolving Credit Loans.




     “Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving
Credit Lenders’ Revolving Credit Commitments at such time.




     “Revolving Credit Lender” means any Lender that has a Revolving Credit Commitment.




     “Revolving Credit-Linked Deposit” means, with respect to each Revolving Credit Lender
at any time, amounts actually on deposit in the Revolving Credit-Linked Deposit Account to
the credit of such Lender’s Revolving Credit-Linked Sub-Account at such time.




     “Revolving Credit-Linked Deposit Account” means the “Revolving Credit Lenders (Boston
Gen) Credit-Linked Deposit Account” established by the Administrative Agent pursuant to
Section 2.18(a).




     “Revolving Credit-Linked Sub-Account” has the meaning set forth in Section
2.18(a).




     “Revolving Credit Loan” has the meaning specified in Section 2.01(c).




     “Revolving Credit Note” means a promissory note of the Borrower payable to the order of
any Revolving Credit Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the
Revolving Credit Loans made by such Lender, as amended.




     “Revolving Credit Termination Date” means the earlier of (a) December 20, 2013 and (b)
the date of termination in whole of the Revolving Credit Commitments pursuant to Section
2.05 or 6.01.




     “RMR Agreement” means the Cost-of-Service Agreement, effective as of January 1, 2006,
among Mystic Development, LLC, Sempra Energy Trading Corp. and ISO New England Inc.




     “RMR Revenues” has the meaning specified in the Security Deposit Agreement.



30









 






     “S&P” means Standard & Poor’s Ratings Services, a division of the McGraw-Hill
Companies, Inc.




     “Second Lien Administrative Agent” has the meaning specified in the preliminary
statements to this Agreement.




     “Second Lien Collateral Agent” has the meaning specified in the Intercreditor
Agreement.




     “Second Lien Collateral Documents” has the meaning specified in the Intercreditor
Agreement.




     “Second Lien Credit Agreement” has the meaning specified in the preliminary statements
to this Agreement.




     “Second Lien Lenders” has the meaning specified in the preliminary statements to this
Agreement.




     “Second Lien Loan Documents” has the meaning specified in the Intercreditor Agreement.




     “Second Lien Secured Parties” has the meaning specified in the Intercreditor Agreement.




     “Second Offer” has the meaning specified in Section 2.06(c).




     “Secured Hedge Agreement” means any Hedge Agreement required to be entered into by the
Borrower with any Hedge Bank pursuant to Section 5.01(m) and any other Hedge
Agreement entered into by the Borrower with any Hedge Bank in the ordinary course of
business and consistent with prudent business practice and otherwise permitted under
Section 5.02(l), in each case, for purposes of hedging the interest rate exposure
associated with the Loan Parties’ Obligations under the Loan Documents.




     “Secured Party” has the meaning specified in the Intercreditor Agreement.




     “Security Deposit Agreement” means that certain Security Deposit Agreement
substantially in the form attached hereto as Exhibit H dated December 21, 2006 by
the Borrower, the Guarantors, the First Lien Collateral Agent, the Second Lien Collateral
Agent and the Depositary, as amended.




     “Semi-Annual Prepayment Date” has the meaning specified in the Security Deposit
Agreement.




     “Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15)
of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and
no Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and
in respect of which any Loan Party or any ERISA Affiliate



31









 







could have liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.




     “Solvent” and “Solvency” mean, with respect to any Person on a particular date, that on
such date (a) the fair value of the property and assets of such Person is greater than the
total amount of liabilities, including, without limitation, contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and
liabilities as they mature (taking into account reasonably anticipated prepayments and
refinancings) and (d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person’s property would
constitute an unreasonably small capital. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an
actual or matured liability.




     “SPC” has the meaning specified in Section 9.07(l).




     “Subordinated Obligations” has the meaning specified in Section 8.05.




     “Subsidiary” of any Person means any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than 50% of (a) the issued
and outstanding capital stock having ordinary voting power to elect a majority of the Board
of Directors of such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of such
partnership, joint venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or more of such
Person’s other Subsidiaries.




     “Surviving Debt” means Debt of each Loan Party outstanding after giving effect to the
Initial Extension of Credit on the Effective Date (other than Debt secured by the First Lien
Collateral Documents and the Second Lien Collateral Documents).




     “Synthetic Debt” means, with respect to any Person, without duplication of any clause
within the definition of “Debt,” the principal amount of all (a) obligations of such Person
under any lease that is treated as an operating lease for financial accounting purposes and
a financing lease for tax purposes (i.e., a “synthetic lease”), (b) obligations of such
Person in respect of transactions entered into by such Person, the proceeds from which would
be reflected on the financial statements of such Person in accordance with GAAP as cash
flows from financings at the time such transaction was entered into (other than as a result
of the issuance of Equity Interests) and (c) obligations of such Person in respect of other
transactions entered into by such Person that are not otherwise addressed



32









 







in the definition of “Debt” or in clause (a) or (b) above that are
intended to function primarily as a borrowing of funds (including, without limitation, any
minority interest transactions that function primarily as a borrowing).



     “Synthetic Issuing Bank” means the Initial Synthetic Issuing Bank and any Eligible
Assignee to which the Synthetic L/C Issuing Commitment hereunder has been assigned pursuant
to Section 9.07 so long as such Eligible Assignee expressly agrees to perform in
accordance with their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Synthetic Issuing Bank and notifies the Administrative
Agent of its Applicable Lending Office and the amount of its Synthetic L/C Issuing
Commitment (which information shall be recorded by the Administrative Agent in the
Register), for so long as such Initial Synthetic Issuing Bank or Eligible Assignee, as the
case may be, shall have a Synthetic L/C Issuing Commitment.



     “Synthetic L/C Available Amount” means, as of any date, the sum (without duplication)
of (a) the aggregate amount of the Synthetic L/C Deposit Commitments in effect on such date
less (b) the Available Amount of Synthetic Letters of Credit issued and outstanding as of
such date less (c) the Unreimbursed Amount of any Synthetic Letter of Credit as of such date
less (d) the amount of any drawings under any Synthetic Letter of Credit reimbursed by the
Borrower or any amounts deposited in the Synthetic L/C Deposit Accounting, in each case,
pursuant to Section 2.03(d) during the 91-day period immediately preceding such
date.



     “Synthetic L/C Borrowing” means an extension of credit resulting from a drawing under
any Synthetic Letter of Credit which has not been reimbursed on the applicable Honor Date
and which amount is funded by reducing the Synthetic L/C Deposits by a like amount,
consisting of simultaneous Synthetic L/C Loans having the same Interest Period made by each
of the Synthetic L/C Lenders pursuant to Section 2.03(d)(iii).



     “Synthetic L/C Cash Collateral Account” has the meaning specified in the Security
Deposit Agreement.



     “Synthetic L/C Deposit” has the meaning specified in Section 2.01(b).



     “Synthetic L/C Deposit Commitment” means, with respect to any Synthetic L/C Lender at
any time, the amount set forth opposite such Lender’s name on Schedule I hereto
under the caption “Synthetic L/C Deposit Commitment” or, if such Lender has entered into one
or more Assignment and Acceptances, set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 9.07(e) as such Lender’s “Synthetic L/C
Deposit Commitment,” as such amount may be reduced at or prior to such time pursuant to
Section 2.05 or increased at or prior to such time pursuant to Section
2.04(d)(v).



     “Synthetic L/C Deposit Cost Amount” means, for any Investment Period with respect to
the Synthetic L/C Deposits, 0.125%.



33









 






     “Synthetic L/C Deposit Facility” means, at any time, an amount equal to the aggregate
amount of the Synthetic L/C Lenders’ Synthetic L/C Deposit Commitments at such time, as such
amount may be reduced at or prior to such time pursuant to Section 2.05(a).




     “Synthetic L/C Deposit Sub-Account” means an account established by the Administrative
Agent or an Affiliate thereof at CS with the title “Synthetic L/C Lenders (Boston Gen)
Credit-Linked Deposit Account” pursuant to Section 2.03(e).




     “Synthetic L/C Exposure” means, as of any date, the sum of (without duplication) (a)
the aggregate principal amount of outstanding Synthetic L/C Loans at such time plus (b) the
Available Amount of all Synthetic Letters of Credit as of such date plus (c) the aggregate
Unreimbursed Amounts under Synthetic Letters of Credit outstanding as of such date plus (d)
unless a Repayment Event has occurred, the amount of any drawings under any Synthetic Letter
of Credit reimbursed by the Borrower or any amounts deposited in the Synthetic L/C Deposit
Account, in each case, pursuant to Section 2.03(d) during the 91-day period
immediately preceding such date.




     “Synthetic L/C Facility” means, at any time, an amount equal to the aggregate amount of
the Synthetic Issuing Banks’ Synthetic L/C Issuing Commitments at such time, as such amount
may be reduced at or prior to such time pursuant to Section 2.05(a).




     “Synthetic L/C Issuing Commitment” means, with respect to the Synthetic Issuing Bank at
any time, the amount set forth opposite the Synthetic Issuing Bank’s name on Schedule
I hereto under the caption “Synthetic L/C Issuing Commitment” or, if the Synthetic
Issuing Bank has entered into an Assignment and Acceptance, set forth for the Synthetic
Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section
9.07(a) as the Synthetic Issuing Bank’s “Synthetic L/C Issuing Commitment,” as such
amount may be reduced at or prior to such time pursuant to Section 2.05(a).




     “Synthetic L/C Lender” means any Lender that has a Synthetic L/C Deposit Commitment.




     “Synthetic L/C Loans” means loans deemed made by the Synthetic L/C Lenders to the
Borrower pursuant to Section 2.03 to reimburse drawings under a Synthetic Letter of
Credit, which loans are funded by reducing the Synthetic L/C Deposits by a like amount.




     “Synthetic L/C Maturity Date” means December 20, 2013.




     “Synthetic L/C Note” means a promissory note of the Borrower payable to the order of
any Synthetic L/C Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the
Synthetic L/C Loans made by such Lender, as amended.



34









 






     “Synthetic L/C Participation Obligations” has the meaning specified in Section
2.03(c)(ii).




     “Synthetic Letter of Credit” has the meaning specified in Section 2.01(d)(ii).




     “Taxes” has the meaning specified in Section 2.12(a).




     “Tender Offer” shall mean, collectively, (a) the offer by EBG Holdings to purchase
outstanding Units of limited liability company interest in EBG Holdings pursuant to the
Offer to Purchase dated as of November 16, 2006 and the related letter of transmittal sent
to holders of such Units, as each may be amended and supplemented from time to time and (b)
the repurchase of warrants and the cashless exercise of warrants referred to in such Offer
to Purchase.




     “Term B Borrowing” means a borrowing consisting of simultaneous Term B Loans of the
same Type made by the Term B Lenders.




     “Term B Commitment” means, with respect to any Term B Lender at any time, the amount
set forth opposite such Lender’s name on Schedule I hereto under the caption “Term B
Commitment” or, if such Lender has entered into one or more Assignment and Acceptances, set
forth for such Lender in the Register maintained by the Administrative Agent pursuant to
Section 9.07(e) as such Lender’s “Term B Commitment,” as such amount may be reduced
at or prior to such time pursuant to Section 2.05.




     “Term B Facility” means, at any time, the aggregate amount of the Term B Lenders’ Term
B Commitments at such time.




     “Term B Lender” means any Lender that has a Term B Commitment.




     “Term B Loan” has the meaning specified in Section 2.01(a).




     “Term B Maturity Date” means December 20, 2013.




     “Term B Note” means a promissory note of the Borrower payable to the order of any Term
B Lender, in substantially the form of Exhibit A-3 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from the Term B Loan made by such
Lender, as amended.




     “Terms of Subordination” means the Terms of Subordination attached hereto as
Exhibit M.




     “Title Company” means Lawyers Title Insurance Corporation.




     “Transaction” means (a) the entering into of the Initial Commodity Hedge and Power Sale
Agreements, (b) the Distribution and the Tender Offer, (c) the entering into of the Loan
Documents and the refinancing of amounts outstanding under the Existing Credit Agreements in
part with the proceeds of amounts under this Agreement (d) the



35









 







entering into of the Second Lien Loan Documents and the refinancing of amounts
outstanding under the Existing Credit Agreements in part with the proceeds of amounts under
the Second Lien Credit Agreement, (e) the entering into of the Mezzanine Documents and (f)
the other transactions contemplated by the Transaction Documents.




     “Transaction Costs” has the meaning set forth in the preliminary statements hereto.




     “Transaction Documents” means, collectively, the Loan Documents and the Related
Documents.




     “Type” refers to the distinction between Loans bearing interest at the Base Rate and
Loans bearing interest at the Eurodollar Rate.




     “UCC Fixture Filing” has the meaning specified in Section 3.01(a)(iv)(A).




     “Units” means units of limited liability company interests in EBG Holdings.




     “Unreimbursed Amount” has the meaning set forth in Section 2.03(d)(i).




     “Unused Revolving Credit Commitment” means, with respect to any Revolving Credit Lender
at any time, (a) such Lender’s Revolving Credit Commitment at such time minus (b) the
aggregate principal amount of all Revolving Credit Loans made (or participated in) by such
Lender (in its capacity as a Revolving Credit Lender) and outstanding at such time.




     “Voting Interests” means shares of capital stock issued by a corporation, or equivalent
Equity Interests in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by the happening
of such a contingency.




     “Withdrawal Liability” has the meaning specified in Part I of Subtitle E of Title IV of
ERISA.



          SECTION 1.02. Computation of Time Periods; Other Definitional Provisions. In this
Agreement and the other Loan Documents in the computation of periods of time from a specified date
to a later specified date, the word “from” means “from and including” and the words “to” and
“until” each mean “to but excluding.” References in the Loan Documents to any agreement or
contract “as amended” shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in accordance with its
terms.




          SECTION 1.03. Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles in effect in the
United States from time to time (“GAAP”); provided that, if the Borrower notifies



36









 






the Administrative Agent that the Borrower requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower
that the Required Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.




ARTICLE II




AMOUNTS AND TERMS OF THE LOANS, SYNTHETIC DEPOSITS,

REVOLVING CREDIT-LINKED DEPOSITS

AND THE SYNTHETIC LETTERS OF CREDIT




          SECTION 2.01. The Loans, Synthetic L/C Deposits, Revolving Credit-Linked Deposits and the
Synthetic Letters of Credit.




          (a) The Term B Loans. Each Term B Lender severally agrees, on the terms and
conditions hereinafter set forth, to make a single advance (a “Term B Loan”) to the Borrower on the
Effective Date in an amount not to exceed such Lender’s Term B Commitment at such time. The Term B
Borrowing shall consist of Term B Loans made simultaneously by the Term B Lenders ratably according
to their Term B Commitments. Amounts borrowed under this Section 2.01(a) and repaid or
prepaid may not be reborrowed.




          (b) The Synthetic L/C Deposits. In consideration and furtherance of the undertaking
of the Synthetic Issuing Bank, each Synthetic L/C Lender severally agrees, on the terms and
conditions hereinafter set forth, to remit to the Administrative Agent on the Effective Date an
amount in Dollars not to exceed such Synthetic L/C Lender’s Synthetic L/C Deposit Commitment (each
such amount, a “Synthetic L/C Deposit”). The Administrative Agent shall deposit all amounts
received by it in the Synthetic L/C Deposit Account promptly upon receipt thereof. Each Synthetic
L/C Lender irrevocably and unconditionally agrees that its Synthetic L/C Deposit shall be available
(i) to pay to the Synthetic Issuing Bank such Synthetic L/C Lender’s Pro Rata Share of any
Unreimbursed Amount under any Synthetic Letter of Credit that is not reimbursed by the Borrower
pursuant to Section 2.03(a) and (ii) to fund such Synthetic L/C Lender’s Synthetic L/C
Loans pursuant to Section 2.03(d)(ii). The failure of any Synthetic L/C Lender to fund its
Synthetic L/C Deposit pursuant to this Section 2.01(b) shall not relieve any other
Synthetic L/C Lender of its obligation, if any, hereunder to fund its Synthetic L/C Deposit, but no
Synthetic L/C Lender shall be responsible for the failure of any other Synthetic L/C Lender to fund
its Synthetic L/C Deposit in accordance with this Section 2.01(b).




          (c) Revolving Credit Loans. (i) Subject to the terms and conditions of this
Agreement, the Fronting Bank shall, from time to time, during the Revolving Credit Availability
Period upon receipt of a Notice of Borrowing from the Borrower, make one or more revolving credit
loans (“Revolving Credit Loans”) to the Borrower in an aggregate principal amount that



37









 






will not result in the total Revolving Credit Exposures exceeding the lesser of the aggregate
balance of the Revolving Credit-Linked Deposit Account (excluding any portion of the Revolving
Credit-Linked Deposit Account attributable to interest) or the total Revolving Credit Commitments.
Within the foregoing limits and subject to satisfaction of the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving Credit Loans in accordance with the
procedures set forth herein.





     (ii) By the making of a Revolving Credit Loan, and without any further action on the
part of the Fronting Bank or the Lenders, the Fronting Bank hereby grants to each Revolving
Credit Lender, and each Revolving Credit Lender hereby acquires from the Fronting Bank, a
participation in such Loan equal to such Lender’s Applicable Revolving Credit Percentage of
the principal amount thereof. Each Revolving Credit Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this Section in respect of Revolving
Credit Loans is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or, subject to
Section 2.18(f), reduction or termination of the Revolving Credit Commitments.




     (iii) In consideration and in furtherance of the foregoing, each Revolving Credit Lender
hereby absolutely and unconditionally authorizes and directs the Administrative Agent to
withdraw from the Revolving Credit-Linked Deposit Account (and debit such Lender’s Revolving
Credit-Linked Sub-Account in the amount of) such Lender’s Applicable Revolving Credit
Percentage of the principal amount of each Revolving Credit Loan not paid when due (whether
at stated maturity, acceleration or otherwise), or of any payment of principal of any
Revolving Credit Loan required to be refunded to the Borrower for any reason (it being
understood and agreed that each Revolving Credit Lender’s obligations in respect of
participations in Revolving Credit Loans shall be payable solely from, and limited to, such
Lender’s Revolving Credit-Linked Deposit).



          (d) Synthetic Letters of Credit.





     (i) [Reserved].




     (ii) Synthetic Letters of Credit. The Synthetic Issuing Bank agrees, on the
terms and conditions hereinafter set forth and in reliance on the agreements of the
Synthetic L/C Lenders set forth in Section 2.03 below, to issue (or cause its
Affiliate that is a commercial bank that meets the criteria set forth in the definition of
“Eligible Assignee” to issue on its behalf) letters of credit (the “Synthetic Letters of
Credit”) in U.S. Dollars for the account of the Borrower from time to time on any Business
Day during the period from the Effective Date until 30 days before the Synthetic L/C
Maturity Date in an aggregate Available Amount for all Synthetic Letters of Credit not to
exceed at any time (A) the Synthetic L/C Facility at such time minus the sum of (1) the
Unreimbursed Amount under all Synthetic Letters of Credit and (2) the Available Amount of
any Synthetic Letters of Credit outstanding at such time and (B) the Synthetic L/C Available
Amount at such time; provided that the aggregate face amount of



38









 







Synthetic Letters of Credit issued to counterparties under the Initial Commodity Hedge
and Power Sale Agreements and the Eligible Permitted Commodity Hedge and Power Sale
Agreement required pursuant to Section 5.01(s) at any time shall not exceed
$150,000,000.




     (iii) Renewal and Termination of Synthetic Letters of Credit. No Synthetic
Letter of Credit shall have an expiration date (including all rights of the Borrower or the
beneficiary to require renewal) later than the earlier of (A) twelve (12) months after such
Letter of Credit’s issuance (provided (a) that any Synthetic Letter of Credit issued to the
counterparty to the Initial Commodity Hedge and Power Sale Agreement may have an initial
expiration date no later than February 1, 2011 and (b) that any Synthetic Letter of Credit
issued to the counterparty to an Eligible Permitted Commodity Hedge and Power Sale Agreement
may have an initial expiration date no later than 60 days after the term of such agreement)
and (B) five (5) Business Days prior to the Synthetic L/C Maturity Date and may by its terms
be renewable annually upon notice (a “Notice of Renewal”) given to the Synthetic Issuing
Bank and the Administrative Agent on or prior to any date for notice of renewal set forth in
such Synthetic Letter of Credit but in any event at least five (5) Business Days prior to
the date of the proposed renewal of such Synthetic Letter of Credit and upon the fulfillment
of the applicable conditions set forth in Article III unless the Synthetic Issuing
Bank has notified the Borrower (with a copy to the Administrative Agent) on or prior to the
date for notice of termination set forth in such Synthetic Letter of Credit but in any event
at least sixty (60) Business Days prior to the date of automatic renewal of its election not
to renew such Synthetic Letter of Credit (a “Notice of Termination”); provided that the
terms of each Synthetic Letter of Credit that is automatically renewable annually shall, (x)
require the Synthetic Issuing Bank to give the beneficiary named in such Synthetic Letter of
Credit notice of any Notice of Termination, (y) permit such beneficiary, upon receipt of
such notice, to draw under such Synthetic Letter of Credit prior to the date such Synthetic
Letter of Credit otherwise would have been automatically renewed and (z) not permit the
expiration date (after giving effect to any renewal) of such Synthetic Letter of Credit in
any event to be extended to a date later than five (5) Business Days before the Synthetic
L/C Maturity Date. If either a Notice of Renewal is not given by the Borrower or a Notice
of Termination is given by any Synthetic Issuing Bank pursuant to the immediately preceding
sentence, such Synthetic Letter of Credit shall expire on the expiry date. Within the
limits of the Synthetic L/C Facility and subject to the limits referred to above, the
Borrower may request the issuance of Synthetic Letters of Credit under this Section
2.01, repay any Unreimbursed Amounts resulting from drawings thereunder pursuant to
Section 2.03(a) and request the issuance of additional Synthetic Letters of Credit
under this Section 2.01.



          SECTION 2.02. Making the Loans. (a) Except as otherwise provided in Section
2.03, each Borrowing shall be made on notice, given not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed Borrowing, in the case of a
Borrowing consisting of Eurodollar Rate Loans, or the same Business Day of the proposed Borrowing
in the case of a Borrowing consisting of Base Rate Loans, by the Borrower to the Administrative
Agent, which shall give to each Appropriate Lender prompt notice thereof



39









 






by telecopier or electronic communication. Each such notice of a Borrowing (a “Notice of
Borrowing”) shall be by telephone, confirmed immediately in writing, or by telecopier or electronic
communication, in substantially the form of Exhibit B-1 hereto, specifying therein the
requested (i) date of such Borrowing, (ii) Facility under which such Borrowing is to be made, (iii)
Types of Loans comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) in the
case of a Borrowing consisting of Eurodollar Rate Loans, the initial Interest Period for each such
Loan. Each Appropriate Lender shall, before 11:00 A.M. (New York City time) on the date of such
Borrowing, make available for the account of its Applicable Lending Office to the Administrative
Agent at the Administrative Agent’s Account, in same day funds, such Lender’s ratable portion of
such Borrowing in accordance with the respective Commitments under the applicable Facility of such
Lender and the other Appropriate Lenders. After the Administrative Agent’s receipt of such funds
and upon fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower by crediting (1) in the case of
the Term B Borrowing, the Funding Account, and (2) in the case of a Revolving Credit Borrowing, the
Revenue Account or, on the Effective Date only, the Funding Account.




          (b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower
may not select Eurodollar Rate Loans for any Borrowing if the obligation of the Appropriate Lenders
to make Eurodollar Rate Loans shall then be suspended pursuant to Section 2.09 or
2.10 and (ii) the Revolving Credit Loans may not be outstanding as part of more than ten
(10) separate Borrowings.




          (c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of
any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Loans, the Borrower shall indemnify each Appropriate Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss (but excluding loss of anticipated profits), cost
or expense incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Loan to be made by such Lender as part of such Borrowing when
such Loan, as a result of such failure, is not made on such date.




          (d) Unless the Administrative Agent shall have received notice from an Appropriate Lender
prior to the date of any Borrowing that such Lender will not make available to the Administrative
Agent such Lender’s ratable portion of such Borrowing, the Administrative Agent may assume that
such Lender has made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not have so made such
ratable portion available to the Administrative Agent, such Lender and the Borrower severally agree
to repay or pay to the Administrative Agent forthwith on demand such corresponding amount and to
pay interest thereon, for each day from the date such amount is made available to the Borrower
until the date such amount is repaid or paid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at such time under




40









 







Section  2.07 to Loans comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. If such Lender shall pay to the Administrative Agent such corresponding
amount, such amount so paid shall constitute such Lender’s Loan as part of such Borrowing for all
purposes.




          (e) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall
not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of
such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the
Loan to be made by such other Lender on the date of any Borrowing.




          SECTION 2.03. Issuance of and Drawings and Reimbursement Under Synthetic Letters of
Credit and Matters Relating to Synthetic L/C Deposits.




          (a) Request for Issuance. Each Synthetic Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time) on the third Business Day prior to the
date of the proposed issuance of such Synthetic Letter of Credit, by the Borrower to the Synthetic
Issuing Bank with a copy to the Administrative Agent by telecopier or electronic communication.
The notice of issuance of any Synthetic Letter of Credit shall be substantially in the form
attached hereto as Exhibit B-2 (a “Notice of Issuance”) shall be in writing or by
telecopier or electronic communication (and confirmed by telephone), specifying therein the
requested (i) date of such issuance (which shall be a Business Day), (ii) Available Amount of such
Synthetic Letter of Credit, (iii) expiration date of such Synthetic Letter of Credit, (iv) name and
address of the beneficiary of such Synthetic Letter of Credit, (v) supportable obligation and (vi)
form of such Synthetic Letter of Credit. If the requested form of such Synthetic Letter of Credit
is acceptable to the Synthetic Issuing Bank in its sole discretion, the Synthetic Issuing Bank
will, upon fulfillment of the applicable conditions set forth in Article III, make such
Synthetic Letter of Credit available to the Borrower at its office referred to in Section
9.02 or as otherwise agreed with the Borrower in connection with such issuance.
Notwithstanding anything herein to the contrary, the Synthetic Issuing Bank shall not be under any
obligation to issue any Synthetic Letter of Credit if any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such
Synthetic Issuing Bank from issuing such Synthetic Letter of Credit, or any law applicable to such
Synthetic Issuing Bank or any directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Synthetic Issuing Bank shall prohibit, or direct
that such Synthetic Issuing Bank refrain from, the issuance of letters of credit generally or such
Synthetic Letter of Credit in particular or shall impose upon such Synthetic Issuing Bank with
respect to such Synthetic Letter of Credit any restriction, reserve or capital requirement (for
which such Synthetic Issuing Bank is not otherwise compensated hereunder), or shall impose upon
such Synthetic Issuing Bank any unreimbursed loss, cost or expense (for which such Synthetic
Issuing Bank is not otherwise compensated hereunder).




          (b) Letter of Credit Reports. Each Synthetic Issuing Bank shall furnish (i) to the
Administrative Agent on the first Business Day of each week a written report summarizing issuance
and expiration dates of Synthetic Letters of Credit issued by such Synthetic Issuing Bank during
the previous week and drawings during such week under all Synthetic Letters of



41









 






Credit issued by
such Synthetic Issuing Bank, (ii) to the Administrative Agent on the first
Business Day of each month a written report summarizing issuance and expiration dates of
Synthetic Letters of Credit issued by it under the Synthetic Letter of Credit Facility, during the
preceding month and drawings during such month under all such Synthetic Letters of Credit and (iii)
to the Administrative Agent on the last Business Day of each calendar quarter a written report
setting forth the average daily aggregate Available Amount during such calendar quarter of all
Synthetic Letters of Credit issued by it under the Synthetic Letter of Credit Facility, in each
case, with a copy to the Borrower.





     (c) Participations in Synthetic Letters of Credit.




     (i) [Reserved].




     (ii) Upon the issuance of each Synthetic Letter of Credit and without further action,
each Synthetic L/C Lender shall be deemed to have irrevocably purchased to the extent of its
Pro Rata Share, a participation interest in such Synthetic Letter of Credit including any
Unreimbursed Amount in respect thereof (each a “Synthetic L/C Participation Obligation”) and
such Synthetic L/C Lender shall, to the extent of its Pro Rata Share, be responsible for
reimbursing the Synthetic Issuing Bank in respect of any Unreimbursed Amount in accordance
with Section 2.03(d) (with the terms of this Section surviving the termination of
this Agreement). Each Synthetic L/C Lender’s Synthetic L/C Participation Obligation shall
be cash collateralized (as provided in Section 2.03(e)), in favor of the Synthetic
Issuing Bank by such Synthetic L/C Lender’s Synthetic L/C Deposit. Each Synthetic L/C
Lender’s Synthetic L/C Deposit shall be available for withdrawal by the Synthetic Issuing
Bank in accordance with Section 2.03(d) to reimburse the Synthetic Issuing Bank for
any Unreimbursed Amount in respect of any Synthetic Letter of Credit.




     (d) Drawing and Reimbursement; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Synthetic Letter of Credit of any notice
of drawing under such Synthetic Letter of Credit, the Synthetic Issuing Bank that issued
such Synthetic Letter of Credit shall notify promptly the Borrower and the Administrative
Agent thereof. On the same Business Day on which any payment is made by any Synthetic
Issuing Bank under a Synthetic Letter of Credit (each such date, an “Honor Date”), the
Borrower shall reimburse such Synthetic Issuing Bank through the Administrative Agent in an
amount equal to the amount of such drawing. If the Borrower fails to so reimburse any
Synthetic Issuing Bank by such time (it being acknowledged and agreed that any such failure
shall not be a Default hereunder), the Administrative Agent shall promptly notify each
Synthetic L/C Lender of the Honor Date, the amount of the unreimbursed drawing (the
“Unreimbursed Amount”), and the amount of such Synthetic L/C Lender’s Pro Rata Share
thereof. In such event, the Borrower shall be deemed to have requested a Synthetic L/C
Borrowing under the Synthetic L/C Facility of Eurodollar Rate Loans as described in
subsection (iii) below, to be disbursed on the Business Day immediately following
the Honor Date in an amount not to exceed the Unreimbursed Amount thereof subject to the
amount of the Synthetic L/C Available



42









 







Amount (without regard to the conditions set forth in
Section 3.02). Any notice given by
a Synthetic Issuing Bank or the Administrative Agent pursuant to this Section
2.03(d) may be given by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or binding effect
of such notice.




     (ii) If the Synthetic Issuing Bank shall not have received from the Borrower a
reimbursement payment under Section 2.03(d) with respect to any Synthetic Letter of
Credit within the time specified in such Section, the Synthetic Issuing Bank will promptly
notify the Administrative Agent and the First Lien Collateral Agent of the Unreimbursed
Amount in respect thereof. Promptly upon receipt of the foregoing notice in respect of any
Unreimbursed Amount under any Synthetic Letter of Credit, the First Lien Collateral Agent
shall cause any funds on deposit in, or credited to, the Synthetic L/C Cash Collateral
Account to be applied to reimburse the Synthetic Issuing Bank in respect of any such
Unreimbursed Amount and the Administrative Agent shall promptly notify each Synthetic L/C
Lender of the portion of such Unreimbursed Amount remaining after such application of funds
on deposit in, or credited to, the Synthetic L/C Cash Collateral Account and its Pro Rata
Share of such portion. Each Synthetic L/C Lender irrevocably and unconditionally authorizes
the Administrative Agent on behalf of the Synthetic Issuing Bank to withdraw from the
Synthetic L/C Deposit Account the remaining amount of such Unreimbursed Amount (and debit
the Synthetic L/C Deposit Sub-Account of each Synthetic L/C Lender in the amount of such
Synthetic L/C Lender’s Pro Rata Share of such remaining amount) to apply such funds as
reimbursement of such Unreimbursed Amount (it being understood that such amount shall be
deemed to constitute a Synthetic L/C Loan (which shall initially be a Eurodollar Rate Loan
as set forth in clause (iii) below) of such Synthetic L/C Lender). Promptly upon
any such application of the Synthetic L/C Deposits pursuant to this Section
2.03(d)(ii), the Synthetic L/C Deposit Commitment of each Synthetic L/C Lender shall be
reduced by the amount of its Synthetic L/C Deposit so applied.




     (iii) On each date on which the Administrative Agent charges the Synthetic L/C Deposit
Account to reimburse all or a portion of an Unreimbursed Amount in respect of a Synthetic
Letter of Credit as provided in Section 2.03(d)(ii) above, such amount shall be
deemed to be a Synthetic L/C Loan with an Interest Period coincident with the applicable
Investment Period for the Synthetic L/C Deposits and the Eurodollar Rate therefor shall be
the same as the applicable Eurodollar Rate for the Synthetic L/C Deposits.




     (iv) If any payment received by the Synthetic Issuing Bank pursuant to Section
2.03(d)(i) is required to be returned under any of the circumstances described in
Section 9.12 (including pursuant to any settlement entered into by the Synthetic
Issuing Bank in its discretion), each Synthetic L/C Lender hereby authorizes the Synthetic
Issuing Bank to reimburse itself solely from such Lender’s Synthetic L/C Deposit plus
interest thereon from the date of such demand to the date such amount is returned by such
Synthetic L/C Lender, at a rate per annum equal to the Eurodollar Rate then in effect.



43









 






     (v) If payment is made from the Synthetic L/C Deposits, the Borrower shall have the
right, within five (5) Business Days of the date on which such payment is made (provided
that no Default or Event of Default shall have occurred and be continuing), to pay to the
Administrative Agent (which shall remit to the Synthetic Issuing Bank for deposit in the
Synthetic L/C Deposit Account) an amount equal to the full amount of such payment and such
amount shall be added to the Synthetic L/C Deposits of the Synthetic L/C Lenders in
accordance with each such Synthetic L/C Lender’s Pro Rata Share of such amount (with a
corresponding increase in such Synthetic L/C Lender’s Synthetic L/C Deposit Commitments),
and each such Synthetic L/C Lender’s Synthetic L/C Loans shall be automatically reduced by a
corresponding equal amount. The Borrower shall pay the Administrative Agent for the account
of each Synthetic L/C Lender accrued and unpaid interest to the date of such reduction of
Synthetic L/C Loans on the principal amount of such Synthetic L/C Loans so reduced pursuant
to this subclause (v).



          (e) Synthetic L/C Deposit Account. (i) On or prior to the Effective Date, the
Administrative Agent shall establish the Synthetic L/C Deposit Account. The Administrative Agent
shall maintain records enabling it to determine at any time the amount of the interest of each
Synthetic L/C Lender in the Synthetic L/C Deposit Account (the interest of each Synthetic L/C
Lender in the Synthetic L/C Deposit Account, as evidenced by such records, being referred to as
such Synthetic L/C Lender’s “Synthetic L/C Deposit Sub-Account”). The Administrative Agent shall
establish such additional Synthetic L/C Deposit Sub-Accounts for any assignee Lenders as shall be
required pursuant to Section 9.07. No Person other than the Administrative Agent (or any
of its sub-agents) shall have the right to make any withdrawal from the Synthetic L/C Deposit
Account or to exercise any other right or power with respect thereto, except as expressly provided
herein. Each Synthetic L/C Lender agrees that its right, title and interest in and to the
Synthetic L/C Deposit Account shall be limited to the right to require its Synthetic L/C Deposit
Sub-Account to be used as expressly set forth herein and that it will have no right to require the
return of any Synthetic L/C Deposit other than as expressly provided herein. Each Synthetic L/C
Lender hereby acknowledges that (A) its Synthetic L/C Deposit constitutes payment for its Synthetic
L/C Participation Obligation, (B) its Synthetic L/C Deposit and any investments made therewith
shall secure its obligations to the Administrative Agent for the benefit of the Synthetic Issuing
Bank hereunder (each Synthetic L/C Lender hereby granting to the Administrative Agent for the
benefit of the Synthetic Issuing Bank, a security interest in its Synthetic L/C Deposit and
agreeing that the Synthetic Issuing Bank, as holder of the Synthetic L/C Deposits on behalf of the
Synthetic Issuing Bank and any investments made therewith, will be acting as collateral agent) and
(C) the Synthetic Issuing Bank will be issuing, amending, renewing and extending Synthetic Letters
of Credit in reliance on the availability of such Lender’s Synthetic L/C Deposit to discharge such
Lender’s obligations in connection with any Unreimbursed Amount under the Synthetic Letters of
Credit in accordance with Section 2.03(d)(ii). Each Synthetic L/C Lender hereby grants to
the Administrative Agent for the benefit of the Synthetic Issuing Bank a security interest in its
rights and interests in such Synthetic L/C Lender’s Synthetic L/C Deposit to secure the obligations
of such Synthetic L/C Lender hereunder.




44









 









     (ii) Each of the Administrative Agent, the Synthetic Issuing Bank and each Synthetic L/C
Lender hereby acknowledges and agrees that (A) each Synthetic L/C Lender is funding its
Synthetic L/C Deposit to the Administrative Agent for application in the manner contemplated
by Section 2.03(d)(ii) and (B) the Administrative Agent may invest the Synthetic L/C
Deposits in Cash Equivalents. The Administrative Agent hereby agrees to pay each Synthetic
L/C Lender, on the last day of each Investment Period applicable to the Synthetic L/C
Deposits, interest (computed on the basis of the actual number of days elapsed over a year
of 360 days) on the amount of such Synthetic L/C Lender’s Pro Rata Share of the aggregate
amount of the Synthetic L/C Deposits during the Investment Period ending on such date at a
rate per annum equal to the Eurodollar Rate for such Investment Period less the Synthetic
L/C Deposit Cost Amount attributable thereto.




     (iii) Each party hereto acknowledges and agrees that no Loan Party shall have any right,
title or interest in or to the Synthetic L/C Deposits, the Synthetic L/C Deposit Account or
any Synthetic L/C Deposit Sub-Account and no obligations with respect thereto, it being
acknowledged and agreed by the parties hereto that the making of the Synthetic L/C Deposits
by the Synthetic L/C Lenders, the provisions of this Section 2.03(e) and the
application of the Synthetic L/C Deposits in the manner contemplated by Section
2.03(d)(ii) constitute agreements among the Administrative Agent, the Synthetic Issuing
Bank and each Synthetic L/C Lender with respect to the funding obligations of each Synthetic
L/C Lender in respect of its participation in Synthetic Letters of Credit and do not
constitute any loan or extension of credit to the Borrower. Without limiting the generality
of the foregoing, each party hereto acknowledges and agrees that the Synthetic L/C Deposits
are and at all times will continue to be property of the Synthetic L/C Lenders and that no
amount on deposit at any time in the Synthetic L/C Deposit Account shall be the property of
any Loan Party, constitute “Collateral” under the Loan Documents or otherwise be available
in any manner to satisfy any Obligation of any Loan Party under the Loan Documents.




     (iv) If, for any Interest Rate Determination Date, the Administrative Agent shall have
determined (which determination shall be conclusive and binding on each Synthetic L/C
Lender) that, by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate, the Administrative Agent
shall give notice thereof to the Synthetic L/C Lenders and until such notice has been
withdrawn, the Synthetic L/C Deposits on deposit in the Synthetic L/C Deposit Account shall
be invested so as to earn a return equal to the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.




     (v) The Administrative Agent shall return amounts on deposit in, or credited to, the
Synthetic L/C Deposit Account to each Synthetic L/C Lender based on such Synthetic L/C
Lender’s Pro Rata Share of such amount (and the Administrative Agent shall make such payment
to each Synthetic L/C Lender promptly upon receipt of such funds) on the earliest to occur
of: (a) a Repayment Event (whether or not an Event of



45









 







Default referred to in subclause (c) below has occurred), (b) on the first date
on or after the Term B Maturity Date on which the Synthetic L/C Exposure has been reduced to
zero, (c) following the occurrence of an Event of Default (other than an Event of Default of
the type described in Section 6.01(g)), on the date occurring 91 days after the
Borrower has cash collateralized all Synthetic Letters of Credit pursuant to Section
6.02 and (d) following the occurrence of an Event of Default of the type described in
Section 6.01(g), after the termination and cancellation of all Synthetic Letters of
Credit.



          (f) Reductions in Synthetic L/C Deposits. (i) The Borrower may, upon at least three
(3) Business Days’ irrevocable written notice to the Synthetic Issuing Bank stating the proposed
date and aggregate principal amount of the reduction, direct the Synthetic Issuing Bank to reduce
in whole or in part the Synthetic L/C Deposits; provided that (A) if any such notice is given (1)
the amount specified in such notice shall be paid on such date by the Administrative Agent to each
Synthetic L/C Lender in accordance with its Pro Rata Share of such reduction amount from the
Synthetic L/C Deposit Account and (2) the Borrower shall pay to the Administrative Agent on the
date of any such reduction for the ratable benefit of the Appropriate Lenders (x) an amount equal
to the accrued Participation Fee through the date of such reduction on the amount of the Synthetic
L/C Deposits being so reduced and (y) in the case of any such reduction on a date other than the
last day of an Interest Period for such Synthetic L/C Deposits, the amount owing by the Borrower
pursuant to Section 9.04(c) and (z) the Administrative Agent shall pay on the date of any
such transfer for the ratable benefit of the Synthetic L/C Lenders interest (computed on the basis
of the actual number of days elapsed over a year of 360 days) on such amount at a rate per annum
equal to the Eurodollar Rate for the then applicable Investment Period less the Synthetic L/C
Deposit Cost Amount attributable thereto, (B) each partial reduction of any of the Synthetic L/C
Deposits (1) shall be in an aggregate amount of $1,000,000 or an integral multiple of $500,000 in
excess thereof and (2) shall be made ratably among the Synthetic L/C Lenders in accordance with
their Synthetic L/C Deposit Commitments and (C) no such reduction shall be permitted if, after
giving effect to such reduction, the Synthetic L/C Exposure would exceed the sum of (x) the
Synthetic L/C Deposits remaining on deposit in the Synthetic L/C Deposit Account plus (y) the
amounts on deposit in the Synthetic L/C Cash Collateral Account after giving effect to such
reduction.





     (ii) On any date on which any amounts are deposited into the Synthetic L/C Cash
Collateral Account pursuant to Section 2.06(b), (A) the Administrative Agent shall
reduce the Synthetic L/C Deposit Account for payment to each Synthetic L/C Lender an amount
equal to such Synthetic L/C Lender’s Pro Rata Share of the amount so deposited in the
Synthetic L/C Cash Collateral Account from the Synthetic L/C Deposit Account, (B) the
Administrative Agent shall pay on the date of any such transfer for the ratable benefit of
the Synthetic L/C Lenders interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) on such amount at a rate per annum equal to the Eurodollar
Rate for the then applicable Investment Period less the Synthetic L/C Deposit Cost amount
attributable thereto, and (C) the Borrower shall pay to the Administrative Agent on the date
of any such transfer for the ratable benefit of the Synthetic L/C Lenders (1) an amount
equal to the accrued Participation Fee through the date of such reduction on the amount of
the Synthetic L/C Deposits being so reduced and (2) in the case of any



46









 







such reduction on a date other than the last day of an Investment Period for such
Synthetic L/C Deposits, the amount owing by the Borrower pursuant to Section
9.04(c). Notwithstanding the foregoing, the Administrative Agent shall not be required
to reduce the Synthetic L/C Deposits to the extent that after giving effect to such
reduction, the Synthetic L/C Exposure would exceed the sum of (x) the Synthetic L/C Deposits
remaining on deposit in the Synthetic L/C Deposit Account plus (y) the amounts on deposit in
the Synthetic L/C Cash Collateral Account, after giving effect to such reduction.




     (iii) On any date on which the Synthetic L/C Deposit Commitments are reduced pursuant to
Section 2.05, (A) the Administrative Agent shall reduce the Synthetic L/C Deposit
Account by the amount of such reduction and shall transfer such amount to each Synthetic L/C
Lender based on such Synthetic L/C Lender’s Pro Rata Share of the amount by which the
Synthetic L/C Deposit Commitments are so reduced, (B) the Administrative Agent shall pay on
the date of any such transfer for the ratable benefit of the Synthetic L/C Lenders interest
(computed on the basis of the actual number of days elapsed over a year of 360 days) on such
amount at a rate per annum equal to the Eurodollar Rate for the then applicable Investment
Period less the Synthetic L/C Deposit Cost Amount attributable thereto, and (C) the Borrower
shall pay to the Administrative Agent on the date of any such transfer for the ratable
benefit of the Synthetic L/C Lenders (1) an amount equal to the accrued Participation Fee
through the date of such reduction on the amount of the Synthetic L/C Deposits being so
reduced and (2) in the case of any such reduction on a date other than the last day of an
Investment Period of such Synthetic L/C Deposits, the amount owing by the Borrower pursuant
to Section 9.04(c).



          (g) Obligations Absolute. The Obligations of the Borrower under this Agreement and
any other agreement or instrument relating to any Synthetic Letter of Credit shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement and such
other agreement or instrument under all circumstances, including, without limitation, the following
circumstances:





     (i) any lack of validity or enforceability of any Loan Document, any Synthetic Letter
of Credit or any other agreement or instrument relating thereto (all of the foregoing being,
collectively, the “L/C Related Documents”);




     (ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the Obligations of the Borrower in respect of any L/C Related Document or any
other amendment or waiver of, or any consent to departure from, all or any of the L/C
Related Documents;




     (iii) the existence of any claim, set-off, defense or other right that the Borrower may
have at any time against any beneficiary or any transferee of a Synthetic Letter of Credit
(or any Persons for which any such beneficiary or any such transferee may be acting), any
Synthetic Issuing Bank or any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;



47









 






     (iv) any statement or any other document presented under a Synthetic Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;




     (v) payment by any Synthetic Issuing Bank under a Synthetic Letter of Credit against
presentation of a draft, certificate or other document that does not strictly comply with
the terms of such Synthetic Letter of Credit;




     (vi) any exchange, release or non-perfection of any Collateral or other collateral, or
any release or amendment or waiver of or consent to departure from the Guarantees or any
other guarantee, for all or any of the Obligations of the Borrower in respect of the L/C
Related Documents; or




     (vii) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including, without limitation, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Borrower or a guarantor.



          (h) Replacement of a Synthetic Issuing Bank. Any Synthetic Issuing Bank may be
replaced at any time by written agreement among the Borrower, the new Synthetic Issuing Bank and
the Administrative Agent (with notice to the Synthetic Issuing Bank being replaced); provided,
however, that, if the Synthetic Issuing Bank being replaced so requests, any Synthetic Letter of
Credit issued by such Synthetic Issuing Bank shall be replaced and cancelled prior to the removal
of such Synthetic Issuing Bank and all fees and other amounts owed to such removed Synthetic
Issuing Bank shall be paid to it.





     (i) If at any time the unsecured senior debt of any Synthetic Issuing Bank is not rated
at least A3 by Moody’s and A- by S&P, then the Borrower may, upon 10 days’ prior written
notice to such Synthetic Issuing Bank and the Administrative Agent, elect to (A) replace
such Synthetic Issuing Bank with a Person selected by the Borrower so long as such Person is
an Eligible Assignee and is reasonably satisfactory to the Administrative Agent or (B) cause
such Synthetic Issuing Bank to assign its Synthetic Letter of Credit Commitment to an
additional Synthetic Issuing Bank selected by the Borrower so long as such Person is an
Eligible Assignee and is reasonably satisfactory to the Administrative Agent. Each
replacement or assignment pursuant to this Section 2.03(h) shall be done in accordance with
Section 9.07.




     (ii) From and after the effective date of any such replacement or addition, (A) the
successor or additional Synthetic Issuing Bank shall have all the rights and obligations of
a Synthetic Issuing Bank under this Agreement (and the Synthetic Letters of Credit to be
issued by it on such effective date or thereafter) and (B) references herein to the term
“Synthetic Issuing Bank” shall be deemed to refer to such successor, additional Synthetic
Issuing Bank or to any previous Synthetic Issuing Bank, or to such successor, additional
Synthetic Issuing Bank and all previous Synthetic Issuing Banks, as the context may require.



48









 





          (i) Existing Letters of Credit. The Borrower and the Guarantors hereby (A) designate
each Existing Letter of Credit as a Synthetic Letter of Credit and (B) accept, acknowledge and
assume all obligations with respect to such Existing Letters of Credit pursuant to the terms and
conditions of this Agreement.




          SECTION 2.04. Repayment of Loans.




          (a) Term B Loans. The Borrower shall repay to the Administrative Agent for the
ratable account of the Term B Lenders the aggregate outstanding principal amount of the Term B
Loans on the last Business Day of each calendar quarter commencing on the last Business Day of
March 2007 in an amount equal to $2,825,000 (which amounts shall be reduced as a result of the
application of prepayments in accordance with the order of priority set forth in Section
2.06); provided, however, that the final principal installment shall be repaid on the Term B
Maturity Date and in any event shall be in an amount equal to the aggregate principal amount of the
Term B Loans outstanding on such date.




          (b) Revolving Credit Loans. The Borrower shall repay to the Administrative Agent for
the ratable account of the Revolving Credit Lenders on the Revolving Credit Termination Date the
aggregate principal amount of the Revolving Credit Loans then outstanding.




          (c) Synthetic L/C Loans. The Borrower shall repay to the Administrative Agent for the
account of the Synthetic Issuing Bank and each Synthetic L/C Lender that has made Synthetic L/C
Loans on the Synthetic L/C Maturity Date the outstanding principal amount of each Synthetic L/C
Loan made by each of them.




          SECTION 2.05. Termination or Reduction of the Commitments.




          (a) Optional. The Borrower may, upon at least five Business Days’ irrevocable notice
to the Administrative Agent (provided that, if a notice is conditioned upon the effectiveness of
other credit facilities or any incurrence or issuance of debt or equity, such notice may be revoked
by the Borrower (by notice to the Administrative Agent) if such credit facilities do not become
effective or such other transaction does not close, subject to the obligations of the Borrower
under Section 9.04(c)), terminate in whole or reduce in part the unused portions of the
Term B Commitments, the Unused Revolving Credit Commitments and the Synthetic L/C Deposit
Commitments; provided, however, that each partial reduction of a Facility (i) shall be in an
aggregate amount of $1,000,000 or an integral multiple of $500,000 in excess thereof, (ii) shall be
made ratably among the Appropriate Lenders in accordance with their Commitments with respect to
such Facility, (iii) after giving effect to any such reduction in respect of the Synthetic L/C
Deposit Commitments, the remaining amount of the Synthetic L/C Deposit Commitments shall be equal
to or greater than the Synthetic L/C Exposure at such time, (iv) the Borrower shall not terminate
or reduce any Revolving Credit Commitments, if, after giving effect to such reduction and any
concurrent prepayment of the Loans in accordance with Section 2.06, the aggregate Revolving
Credit Exposure would exceed the aggregate Revolving Credit Commitments and (v) with respect to
such termination or reduction consisting of a re-pricing or a refinancing of all or substantially
all of any such unutilized Commitments, the



49









 






Borrower shall pay to the Administrative Agent, for the ratable benefit of the Appropriate Lenders, the Call
Premium, if any. The Borrower’s notice to the Administrative Agent shall designate the date (which
shall be a Business Day) of such termination or reduction, the amount of any partial reduction and
the Call Premium, if any, and such termination or reduction of the relevant Commitments shall be
effective on the date specified in the Borrower’s notice and shall reduce the relevant Commitments
of the Appropriate Lenders proportionately in accordance with each such Appropriate Lender’s Pro
Rata Share thereof.




          (b) Mandatory. (i) Subject to any increases in Synthetic L/C Deposit Commitments of
Synthetic L/C Lenders pursuant to Section 2.03(d)(v), the Synthetic L/C Deposit Commitment
of each Synthetic L/C Lender shall be permanently and ratably reduced from time to time upon any
reduction in the Synthetic L/C Deposits.





     (ii) Any termination or reduction of the Revolving Credit Commitments or the aggregate
Revolving Credit-Linked Deposits pursuant to Section 2.05 shall be permanent.




     (iii) Unless previously terminated or reduced, the Revolving Credit Commitments shall
terminate and be reduced to zero on the Revolving Credit Termination Date. Subject only to
the Borrower’s compliance with its obligations under the preceding sentence, any amount of
the Revolving Credit-Linked Deposits held in the Revolving Credit-Linked Deposit Account
will be returned to the Revolving Credit Lenders on the Revolving Credit Termination Date
ratably in accordance with their Applicable Revolving Credit Percentages of the total
Revolving Credit-Linked Deposits for all Revolving Credit Lenders.



          (c) In the event the aggregate Revolving Credit Commitments shall be reduced as provided in
clause (a) above, the Administrative Agent will return all amounts in the Revolving
Credit-Linked Deposit Account in excess of the reduced aggregate Revolving Credit-Linked Deposits
corresponding to the reduced Revolving Credit Commitments to the Revolving Credit Lenders, ratably
in accordance with their Applicable Revolving Credit Percentages of the Revolving Credit
Commitments. Any such reduction of the Revolving Credit Commitments and Revolving Credit-Linked
Deposits shall be subject to the provisions of Section 9.04(c).




          SECTION 2.06. Prepayments.




          (a) Optional. The Borrower may, upon at least one Business Day’s irrevocable notice
in the case of Base Rate Loans and three Business Days’ irrevocable notice in the case of
Eurodollar Rate Loans, in each case to the Administrative Agent (provided that, if a notice is
conditioned upon the effectiveness of other credit facilities or any incurrence or issuance of debt
or equity, such notice may be revoked by the Borrower (by notice to the Administrative Agent) if
such credit facilities do not become effective or such other transaction does not close, subject to
the obligations of the Borrower under Section 9.04(c)) stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the Borrower shall prepay
the outstanding aggregate principal amount of the Loans comprising part of the same Borrowing in
whole or ratably in part, together with accrued interest to the date of such prepayment unless such
accrued interest is in respect of a prepayment that is a prepayment



50









 






of Revolving Credit Loans consisting of Base Rate Loans which accrued and unpaid interest
shall be in arrears on the last Business Day of December, March, June and September commencing on
the last Business Day of March 2007 on the aggregate principal amount prepaid; provided, however,
that (i) each partial prepayment shall be in an aggregate principal amount of $1,000,000 or an
integral multiple of $500,000 in excess thereof, (ii) if any prepayment of a Eurodollar Rate Loan
is made on a date other than the last day of an Interest Period for such Loan, the Borrower shall
also pay any amounts owing pursuant to Section 9.04(c) and (iii) with respect to such
prepayment consisting of a re-pricing or a refinancing of all or substantially all of any such
Loans with the proceeds of Debt for Borrowed Money issued or incurred by any of the Loan Parties,
the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Appropriate
Lenders, the Call Premium, if any. Each such prepayment of the Term B Loans shall be applied to
the installments thereof pro rata.




          (b) Mandatory. (i) The Borrower shall on the date specified in the last sentence of
clause (c) below (A) prepay an aggregate principal amount of the Loans plus accrued and
unpaid interest thereon to the date of prepayment and any amounts owing pursuant to Section
9.04(c) and (B) deposit funds in the Synthetic L/C Cash Collateral Account, in either case,
with funds then on deposit in the Prepayment Account on each Semi-Annual Prepayment Date (other
than Net Cash Proceeds (if any) referred to in clause (ii) below) in accordance with the
priorities first through fourth of Section 3.8 of the Security Deposit Agreement. Each such
prepayment of the Term B Facility shall be applied to the installments of such Term B Facility pro
rata.





     (ii) Subject to the Security Deposit Agreement, following the receipt of any Net Cash
Proceeds of any Casualty Event, Event of Eminent Domain, Asset Sale, Equity Issuance or the
incurrence or issuance of any Debt (other than Debt permitted to be incurred pursuant to
Section 5.02(b)), the Borrower shall on the date specified in the last sentence of
clause (c) below (A) prepay an aggregate principal amount of the Loans plus accrued
and unpaid interest thereon to the date of prepayment and any amounts owing pursuant to
Section 9.04(c) and (B) deposit funds in the Synthetic L/C Cash Collateral Account,
in either case, with such Net Cash Proceeds then on deposit in the Prepayment Account in
accordance with priorities first through fourth of Section 3.8 of the Security Deposit
Agreement. Each such prepayment of the Term B Facility shall be applied to the installments
of such Term B Facility pro rata.



          (c) Procedures; Option to Decline. Not later than 11:00 a.m. (New York City time) on
the Business Day following each Semi-Annual Prepayment Date, in the cause of clause (b)(i)
above, or following the receipt of Net Cash Proceeds, in the case of clause (b)(ii) above,
the Borrower shall notify the Administrative Agent of the amount that is available to prepay such
Loans (the “Prepayment Amount”). On the date of receipt of such notice, or, if such notice is
received after 11:00 A.M. (New York City time), on the next succeeding Business Day, the
Administrative Agent shall provide written notice (the “First Offer”) to the Appropriate Lenders of
the amount available to prepay the Loans. Any Appropriate Lender, at its option, may elect not to
accept any prepayment of such Loans pursuant to Section 2.06(b). Any Appropriate Lender
declining such prepayment (a “Declining Lender”) shall give written notice



51









 






thereof to the Administrative Agent by 11:00 a.m. (New York City time) no later than two Business Days
after the date of such notice from the Administrative Agent. On such date the Administrative Agent
shall then provide written notice (the “Second Offer”) to the Appropriate Lenders other than the
Declining Lenders (such Appropriate Lenders being the “Accepting Lenders”) of the additional amount
available (due to such Declining Lenders’ declining such prepayment) to prepay such Loans owing to
such Accepting Lenders. Any Appropriate Lender declining prepayment pursuant to such Second Offer,
shall give written notice thereof to the Administrative Agent by 11:00 a.m. (New York City time) no
later than two Business Days after the date of such notice of a Second Offer. The Administrative
Agent shall repeat the First Offer and Second Offer, if applicable, for any Facility entitled to a
repayment of Loans under Section 2.06(b) until the date that the Administrative Agent shall
have determined the amounts to be prepaid hereunder in connection with such mandatory prepayments,
and, on such date, the Administrative Agent shall give written notice to the Borrower of the amount
of the prepayments required to be made on the applicable prepayment date pursuant to Section
2.06(b), after giving effect to the First Offer and the Second Offer. The Borrower shall
direct the prepayment of such Loans in accordance with the Security Deposit Agreement, in the
aggregate amount specified in the notice from the Administrative Agent described in the immediately
preceding sentence, within one Business Day after its receipt of notice from the Administrative
Agent of the aggregate amount of such prepayment.




          (d) Application of Prepayment by Type of Term B Loans. In connection with any
voluntary prepayments by the Borrower pursuant to clause (a) above, any voluntary
prepayment thereof shall be applied first to Base Rate Loans to the full extent thereof before
application to Eurodollar Rate Loans, in each case in a manner that minimizes the amount of any
payments required to be made by the Borrower pursuant to Section 9.04(c).




          (e) In connection with any mandatory prepayments by the Borrower of the Term B Loans pursuant
to clause (b) above and Section 2.15, such prepayments shall be applied on a pro
rata basis to the then outstanding Term Loans being prepaid irrespective of whether such
outstanding Term B Loans are Base Rate Loans or Eurodollar Rate Loans; provided that if no Lenders
exercise the right to waive a given mandatory prepayment of the Term B Loans pursuant to clause
(c) above or Section 2.15 then, with respect to such mandatory prepayment, the amount
of such mandatory prepayment shall be applied first to Term B Loans that are Base Rate Loans to the
full extent thereof before application to Term B Loans that are Eurodollar Rate Loans in a manner
that minimizes the amount of any payments required to be made by the Borrower pursuant to
Section 9.04(c).




          SECTION 2.07. Interest.




          (a) Scheduled Interest. The Borrower shall pay interest on the unpaid principal
amount of each Loan owing to each Lender from the date of such Loan until such principal amount
shall be paid in full, at the following rates per annum:





     (i) Base Rate Loans. During such periods as such Loan is a Base Rate Loan, a
rate per annum equal at all times to the sum of (A) the Base Rate in effect from time to
time plus (B) the Applicable Margin in effect from time to time, payable in arrears



52









 







quarterly on the last Business Day of each December, March, June and September during
such periods and on the date such Base Rate Loan shall be Converted or paid in full
commencing on the last Business Day of March 2007.




     (ii) Eurodollar Rate Loans. During such periods as such Loan is a Eurodollar
Rate Loan, a rate per annum equal at all times during each Interest Period for such Loan to
the sum of (A) the Eurodollar Rate for such Interest Period for such Loan plus (B) the
Applicable Margin in effect, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of such Interest Period
and on the date such Eurodollar Rate Loan shall be Converted or paid in full.



          (b) Default Interest. Upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent may, and upon the request of the Required Lenders shall, require
that the Borrower pay interest (“Default Interest”) on (i) the unpaid principal amount of each Loan
owing to each Lender Party, payable in arrears on the dates referred to in clause (i) or
(ii) of Section 2.07(a), as applicable, and on demand, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on such Loan pursuant to
clause (i) or (ii) of Section 2.07(a), as applicable, and (ii) to the
fullest extent permitted by applicable law, the amount of any interest, fee (including the
Participation Fee) or other amount payable under this Agreement or any other Loan Document to any
Agent or any Lender Party that is not paid when due, from the date such amount shall be due until
such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Loans pursuant to clause (i) of Section 2.07(a);
provided, however, that following the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Administrative Agent to declare the Loans due
and payable pursuant to the provisions of Section 6.01, Default Interest shall accrue and
be payable hereunder whether or not previously required by the Administrative Agent. Payment or
acceptance of the increased rates of interest provided for in this Section 2.07(b) is not a
permitted alternative to timely payment and shall not constitute a waiver of any Event of Default
or otherwise prejudice or limit any rights or remedies of the Administrative Agent or any Lender
Party.




          (c) Notice of Interest Period and Interest Rate. Promptly after receipt of a Notice
of Borrowing pursuant to Section 2.02(a), a notice of Conversion pursuant to Section
2.09 or a notice of selection of an Interest Period pursuant to the terms of the definition of
“Interest Period,” the Administrative Agent shall give notice to the Borrower and each Appropriate
Lender of the applicable Interest Period and the applicable interest rate determined by the
Administrative Agent for purposes of clause (a)(i) or (a)(ii) above.




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          SECTION 2.08. Fees.




          (a) Revolver Fee. The Borrower agrees to pay to the Administrative Agent on behalf of
the Revolving Credit Lenders on a quarterly basis on the last Business Day of each December, March,
June and September (commencing on the last Business Day of March 2007) occurring after the
Effective Date for the account of each Revolving Credit Lender a fee, accruing (subject to
Section 2.07(b)) at a rate per annum equal to the Applicable Margin on the daily amount of
the Revolving Credit-Linked Deposit of such Revolving Credit Lender (less the principal amount of
the Revolving Credit Loans held by Revolving Credit Lenders during such period and not by the
Fronting Bank in its capacity as such) during the period from and including the Effective Date to
but excluding the date on which each of the Revolving Credit Commitments of all of the Revolving
Credit Lenders has been reduced to zero. In addition, the Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender an additional amount, accruing
at the rate of 0.125% per annum, on the daily amount of the Revolving Credit-Linked Deposit of such
Revolving Credit Lender during the period from and including the Effective Date hereof to but
excluding the date on which each of the Revolving Credit Commitments of all of the Revolving Credit
Lenders has been reduced to zero (less the principal amount of the Revolving Credit Loans held by
Revolving Credit Lenders during such period and not by the Fronting Bank in its capacity as such).
All fees payable under this paragraph shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day but excluding the
last day). The foregoing fees shall be due and payable in arrears quarterly on the last Business
Day of each December, March, June and September (commencing on the last Business Day of March 2007)
occurring after the Effective Date, and on the date on which each of the Revolving Credit
Commitments of all of the Revolving Credit Lenders has been reduced to zero.




          (b) Letter of Credit Fees. (i) [Reserved].





     (ii) The Borrower agrees to pay to the Administrative Agent for the account of each
Synthetic L/C Lender a participation fee (a “Participation Fee”) with respect to its
agreement to participate in the Synthetic Letters of Credit, which Participation Fee shall
accrue at a rate per annum equal to the Applicable Margin plus the Synthetic L/C Deposit
Cost Amount attributable to such Synthetic L/C Lender’s Synthetic L/C Deposit, on the
average daily amount of such Synthetic L/C Lender’s Synthetic L/C Deposit during the period
from and including, the Effective Date and to but excluding the date on which such Synthetic
L/C Lender’s Synthetic L/C Deposit is returned to such Synthetic L/C Lender in accordance
with Section 2.03(e)(v). Accrued Participation Fees shall be due and payable in
arrears quarterly on the last Business Day of each December, March, June and September
(commencing on the last Business Day of March 2007) occurring after the Effective Date;
provided that all such Participation Fees shall be payable on the date on which any
Synthetic L/C Deposits are returned to the Synthetic L/C Lenders pursuant to Section
2.03(e)(v).




     (iii) The Borrower shall pay the Synthetic Issuing Bank, for its own account, such
commissions, issuance fees, fronting fees, transfer fees and other fees and charges in



54









 







connection with the issuance, administration and amendment of each Synthetic Letter of
Credit as the Borrower and such Synthetic Issuing Bank may agree.



          (c) Agents’ Fees. The Borrower shall pay to each Agent for its own account such fees
as may from time to time be agreed between the Borrower and such Agent.




          SECTION 2.09. Conversion of Loans.




          (a) Optional. The Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Section 2.10,
Convert all or any portion of the Loans of one Type comprising the same Borrowing into Loans of the
other Type; provided, however, that any Conversion of Eurodollar Rate Loans into Base Rate Loans
shall be made only on the last day of an Interest Period for such Eurodollar Rate Loans or, if made
on another date, shall be subject to the provisions of Section 9.04(c), any Conversion of
Base Rate Loans into Eurodollar Rate Loans shall be in an amount not less than the minimum amount
specified in Section 2.02(b), no Conversion of any Loans shall result in more separate
Borrowings than permitted under Section 2.02(b) and each Conversion of Loans comprising
part of the same Borrowing under any Facility shall be made ratably among the Appropriate Lenders
in accordance with their Commitments under such Facility. Each such notice of Conversion shall,
within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Loans to
be Converted and (iii) if such Conversion is into Eurodollar Rate Loans, the duration of the
initial Interest Period for such Loans. Each notice of Conversion shall be irrevocable and binding
on the Borrower.




          (b) Mandatory. (i) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Loans in accordance with the provisions contained in the definition
of “Interest Period” in Section 1.01, the Administrative Agent will forthwith so notify the
Borrower and the Appropriate Lenders, whereupon each such Eurodollar Rate Loan shall have an
Interest Period of one month.





     (ii) Upon the occurrence and during the continuance of any Event of Default, (x) each
Eurodollar Rate Loan will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Loan and (y) the obligation of the Lenders to
make, or to Convert Loans into, Eurodollar Rate Loans shall be suspended.



          SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the introduction of
or any change in or in the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other Governmental Authority (whether or not having
the force of law), there shall be any increase in the cost to any Lender Party of agreeing to make
or of making, funding or maintaining Eurodollar Rate Loans, any Revolving Credit-Linked Deposit or
any Synthetic L/C Deposit or of agreeing to issue or of issuing or maintaining or participating in
Synthetic Letters of Credit or of agreeing to make or of making or maintaining Synthetic L/C Loans
or Revolving Credit Loans (excluding, for purposes of this Section 2.10, any such increased
costs resulting from (x) Taxes or Other Taxes (as to which Section 2.12 shall govern) and
(y) changes in the basis or rate of taxation of overall net income or overall gross



55









 






income by the United States or by the foreign jurisdiction or state under the laws of which
such Lender Party is organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender Party (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent for the account of
such Lender Party additional amounts sufficient to compensate such Lender Party for such increased
cost. A certificate as to the amount of such increased cost, submitted to the Borrower by such
Lender Party, shall be conclusive and binding for all purposes, absent manifest error.




          (b) If any Lender Party determines that compliance with any law or regulation or any guideline
or request from any central bank or other Governmental Authority (whether or not having the force
of law) affects or would affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the amount of such capital
is increased by or based upon the existence of such Lender Party’s commitment to make Loans, to
maintain Synthetic L/C Deposits, Revolving Credit-Linked Deposits or to issue or participate in
Synthetic Letters of Credit hereunder and other commitments of such type or the issuance or
maintenance of or participation in the Synthetic Letters of Credit (or similar Guaranteed Debts),
then, upon demand by such Lender Party or such corporation (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for the account of such
Lender Party, from time to time as specified by such Lender Party, additional amounts sufficient to
compensate such Lender Party in the light of such circumstances, to the extent that such Lender
Party reasonably determines such increase in capital to be allocable to the existence of such
Lender Party’s commitment to make Loans, to maintain Synthetic L/C Deposits or Revolving
Credit-Linked Deposits or to issue or participate in Synthetic Letters of Credit hereunder or to
the issuance or maintenance of or participation in any Synthetic Letters of Credit. A certificate
as to such amounts submitted to the Borrower by such Lender Party shall be conclusive and binding
for all purposes, absent manifest error.




          (c) If, with respect to any Eurodollar Rate Loans under any Facility, Lenders owed at least
331⁄3% of the then aggregate unpaid principal amount thereof notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Loans will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Loans for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrower and the Appropriate Lenders, whereupon
(i) each such Eurodollar Rate Loan under such Facility will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Loan and (ii) the obligation of
the Appropriate Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be suspended
and (iii) the Revolving Credit-Linked Deposit and the Synthetic L/C Deposits shall be invested so
as to earn a return equal to the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation, in each
case, until the Administrative Agent shall notify the Borrower that such Lenders have determined
that the circumstances causing such suspension no longer exist, in which case (x) the obligation of
the Appropriate Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be
reinstated and (y) the Revolving Credit-Linked Deposit and the Synthetic L/C Deposits shall be
invested as otherwise provided herein.




56









 








          (d) Notwithstanding any other provision of this Agreement, if the introduction of or any
change in or in the interpretation of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Loans or to
continue to fund or maintain Eurodollar Rate Loans hereunder, then, on notice thereof and demand
therefor by such Lender to the Borrower through the Administrative Agent, (i) each Eurodollar Rate
Loan under each Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Base Rate Loan, (ii) the obligation of the Appropriate Lenders to make, or
to Convert Loans into, Eurodollar Rate Loans shall be suspended and (iii) the Revolving
Credit-Linked Deposits and the Synthetic L/C Deposits shall be invested so as to earn a return
equal to the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation, in each case, until the
Administrative Agent shall notify the Borrower that such Lender has determined that the
circumstances causing such suspension no longer exist, in which case (x) the obligation of the
Appropriate Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be reinstated
and (y) the Revolving Credit-Linked Deposits and the Synthetic L/C Deposits shall be invested as
otherwise provided herein; provided, however, that, before making any such demand, such Lender
agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Eurodollar Lending Office if the making of such a
designation would allow such Lender or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate Loans,
Revolving Credit-Linked Deposits or its Synthetic L/C Deposit and would not, in the judgment of
such Lender, be otherwise disadvantageous to such Lender.




          SECTION 2.11. Payments and Computations. (a) The Borrower shall make each payment
hereunder and under the other Loan Documents, irrespective of any right of counterclaim or set-off
(except as otherwise provided in Section 2.13), not later than 11:00 A.M. (New York City
time) on the day when due in U.S. dollars to the Administrative Agent at the Administrative Agent’s
Account in same day funds, with payments being received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day in the Administrative
Agent’s sole discretion. The Administrative Agent will promptly thereafter cause like funds to be
distributed (i) if such payment by the Borrower is in respect of principal, interest, commitment
fees or any other Obligation then payable hereunder and under the other Loan Documents to more than
one Lender Party, to such Lender Parties for the account of their respective Applicable Lending
Offices ratably in accordance with the amounts of such respective Obligations then payable to such
Lender Parties and (ii) if such payment by the Borrower is in respect of any Obligation then
payable hereunder to one Lender Party, to such Lender Party for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this Agreement.




          (b) The Borrower hereby authorizes each Lender Party and each of its Affiliates, if and to the
extent payment owed to such Lender Party is not made when due hereunder or under the other Loan
Documents to charge from time to time, to the fullest extent



57









 






permitted by law, against any or all of the Borrower’s accounts with such Lender Party or such
Affiliate any amount so due.




          (c) All computations of interest based on the Base Rate shall be made by the Administrative
Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of
interest based on the Eurodollar Rate or the Federal Funds Rate and of fees (including the
Participation Fees) and Synthetic Letter of Credit commissions shall be made by the Administrative
Agent on the basis of a year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the Administrative Agent of an interest rate, fee
or commission hereunder shall be conclusive and binding for all purposes, absent manifest error.




          (d) Except as otherwise provided under the Loan Documents, whenever any payment hereunder or
under the other Loan Documents shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee or commission, as the
case may be; provided, however, that, if such extension would cause payment of interest or
commitment fee or commission on or principal of Eurodollar Rate Loans, Revolving Credit-Linked
Deposits or Synthetic L/C Deposits to be made in the next following calendar month, such payment
shall be made on the preceding Business Day.




          (e) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to any Lender Party hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon
such assumption, cause to be distributed to each such Lender Party on such due date an amount equal
to the amount then due such Lender Party. If and to the extent the Borrower shall not have so made
such payment in full to the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender Party together with
interest thereon, for each day from the date such amount is distributed to such Lender Party until
the date such Lender Party repays such amount to the Administrative Agent, at the Federal Funds
Rate.




          (f) If the Administrative Agent receives funds for application to the Obligations of the Loan
Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents
do not specify the Loans or the Facility to which, or the manner in which, such funds are to be
applied, the Administrative Agent may, if no instructions with respect thereto are received from
the Lender Parties upon request, but shall not be obligated to, elect to distribute such funds to
each of the Lender Parties in accordance with such Lender Party’s Pro Rata Share of the sum of
(without duplication) (i) the aggregate principal amount of all Loans outstanding at such time,
(ii) the aggregate amount of the Synthetic L/C Deposits at such time, (iii) the aggregate Available
Amount of all Synthetic Letters of Credit outstanding at such time and (iv) the aggregate amount of
the Revolving Credit-Linked Deposits at such time, in repayment or prepayment of such of the
outstanding Loans or other Obligations then owing to



58









 






such Lender Party, and, in the case of the Term B Facility, for application to such principal
repayment installments thereof, as the Administrative Agent shall direct.




          SECTION 2.12. Taxes. (a) Any and all payments by any Loan Party to or for the
account of any Lender Party or any Agent hereunder or under any other Loan Document shall be made,
in accordance with Section 2.11 or the applicable provisions of such other Loan Document,
if any, free and clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding,
in the case of each Lender Party and each Agent, (x) taxes that are imposed on its overall net
income by the United States and taxes that are imposed on its overall net income (and franchise
taxes imposed in lieu thereof) by the state or foreign jurisdiction under the laws of which such
Lender Party or such Agent, as the case may be, is organized (or any political subdivision
thereof), has its Applicable Lending Office, has a permanent establishment or is engaged in
business (other than the business that the Lender Party is engaged in solely by reason of the
transactions contemplated by this Agreement), (y) any branch profits taxes imposed by the United
States of America and (z) withholding taxes imposed under law in effect on the date hereof or at
the time the Lender Party designates a new Applicable Lending Office, other than any new Applicable
Lending Office designated at the written request of a Loan Party (in the case of a Lender Party
that is not an Initial Lender, this clause (z) shall include taxes imposed under law in
effect on the date such Lender Party becomes a Lender, except to the extent that the Lender’s
predecessor would have been entitled to receive additional amounts under this Section
2.12(a)) and, in the case of each Lender Party, taxes that are imposed on its overall net
income (and franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of such
Lender Party’s Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect
of payments hereunder or under any other Loan Document being hereinafter referred to as “Taxes”).
If any Loan Party or the Administrative Agent shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder or under any other Loan Document to any Lender Party or any
Agent, (i) the sum payable by such Loan Party shall be increased as may be necessary so that after
such Loan Party and the Administrative Agent have made all required deductions (including
deductions applicable to additional sums payable under this Section 2.12) such Lender Party
or such Agent, as the case may be, receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Loan Party shall make all such deductions and (iii) such
Loan Party shall pay the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law.




          (b) In addition, each Loan Party shall pay any present or future stamp, documentary, excise,
property (including intangible property, but with regard to all property taxes, only to the extent
relating to property of a Loan Party) mortgage recording or similar taxes, charges or levies that
arise from any payment made by such Loan Party hereunder or under any other Loan Documents or from
the execution, delivery or registration of, performance under this Agreement or the other Loan
Documents (hereinafter referred to as “Other Taxes”).




          (c) The Loan Parties shall indemnify each Lender Party and each Agent for and hold them
harmless against the full amount of Taxes and Other Taxes, and for the full


59









 







amount of taxes of any kind imposed or asserted by any jurisdiction on amounts payable under
this Section 2.12, imposed on or paid by such Lender Party or such Agent (as the case may
be) and any liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30 days from the date
such Lender Party or such Agent (as the case may be) makes written demand therefor.




          (d) Within 30 days after the date of any payment of Taxes, the appropriate Loan Party shall
furnish to the Administrative Agent, at its address referred to in Section 9.02, the
original or a certified copy of a receipt evidencing such payment, to the extent such a receipt is
issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. In the case of any payment hereunder or under the other Loan Documents by or
on behalf of a Loan Party through an account or branch outside the United States or by or on behalf
of a Loan Party by a payor that is not a United States person, if such Loan Party determines that
no Taxes are payable in respect thereof, such Loan Party shall furnish, or shall cause such payor
to furnish, to the Administrative Agent, at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from Taxes. For purposes of
subsections (d) and (e) of this Section 2.12, the terms “United States” and
“United States person” shall have the meanings specified in Section 7701 of the Internal Revenue
Code.




          (e) Each Lender Party organized under the laws of a jurisdiction outside the United States
shall, on or prior to the date of its execution and delivery of this Agreement in the case of each
Initial Lender Party and on the date of the Assignment and Acceptance pursuant to which it becomes
a Lender Party in the case of each other Lender Party, and from time to time thereafter as
reasonably requested in writing by the Borrower (but only so long thereafter as such Lender Party
remains lawfully able to do so), provide each of the Administrative Agent and the Borrower with two
original Internal Revenue Service Forms W-8BEN or W-8ECI or (in the case of a Lender Party that has
certified in writing to the Administrative Agent that it is not (i) a “bank” as defined in Section
881(c)(3)(A) of the Internal Revenue Code), (ii) a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Internal Revenue Code) of any Loan Party or (iii) a controlled foreign
corporation related to any Loan Party (within the meaning of Section 864(d)(4) of the Internal
Revenue Code), Internal Revenue Service Form W-8BEN, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender Party is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement
or any other Loan Document or, in the case of a Lender Party that has certified that it is not a
“bank” as described above, certifying that such Lender Party is a foreign corporation, partnership,
estate or trust. As provided in Section 2.12(a), if the forms provided by a Lender Party
at the time such Lender Party first becomes a party to this Agreement indicate a United States
interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender Party provides the appropriate forms certifying
that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such forms; provided, however, that if, at the
effective date of the Assignment and Acceptance pursuant to which a Lender Party becomes a party to
this Agreement, the Lender Party assignor was entitled to payments under subsection (a) of
this Section 2.12 in respect of United States withholding tax with respect to interest paid
at such date,



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then, to such extent, the
term Taxes shall include (in addition to withholding taxes that may be imposed in the future
or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable
with respect to the Lender Party assignee on such date. If any form or document referred to in
this subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof by Internal
Revenue Service Form W-8BEN or W-8ECI or the related certificate described above, that the
applicable Lender Party reasonably considers to be confidential, such Lender Party shall give
notice thereof to the Borrower and shall not be obligated to include in such form or document such
confidential information.




          (f) For any period with respect to which a Lender Party has failed to provide the Borrower
with the appropriate form, certificate or other document described in subsection (e) above
(other than if such failure is due to a change in law, or in the interpretation or application
thereof, occurring after the date on which a form, certificate or other document originally was
required to be provided or if such form, certificate or other document otherwise is not required
under subsection (e) above), such Lender Party shall not be entitled to indemnification
under subsection (a) or (c) of this Section 2.12 with respect to Taxes
imposed by the United States by reason of such failure; provided, however, that should a Lender
Party become subject to Taxes because of its failure to deliver a form, certificate or other
document required hereunder, the Loan Parties shall take such steps as such Lender Party shall
reasonably request, at the Lender Party’s sole expense and as long as the Loan Parties determine
that such steps will not, in the reasonable judgment of the Loan Parties, be disadvantageous to the
Loan Parties, to assist such Lender Party to recover such Taxes.




          (g) Any Lender Party claiming any additional amounts payable pursuant to this Section
2.12 agrees to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending Office if the making
of such a change would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such Lender Party, be
otherwise disadvantageous to such Lender Party. In addition, if a Lender Party determines, in such
Lender Party’s sole discretion, that it has received a refund or credit in respect of any Taxes or
Other Taxes as to which it has been indemnified pursuant to Section 2.12(c), or with
respect to which additional amounts have been paid pursuant to Section 2.12(a), such Lender
Party shall pay to the Borrower an amount equal to such refund (but such amount in no event to
exceed the amount of any indemnity payments made, or additional amounts paid, by the Borrower under
this Section 2.12 with respect to the Taxes or Other Taxes giving rise to such refund) net
of all out-of-pocket expenses of such Lender Party, and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund), provided that the
Borrower, upon the request of such Lender Party, shall agree to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to such Lender Party in the event such Lender Party subsequently determines that such
refund or credit is unavailable under applicable law or is otherwise required to repay such refund
to such Governmental Authority. This paragraph shall not be construed to require a Lender Party to
rearrange its tax affairs or to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to the Borrower or any other Person.




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          (h) The Administrative Agent shall deliver to each Loan Party on the Effective Date (and shall
keep effective thereafter) two duly completed copies of Internal Revenue Service Form W-8IMY, or
any successor or other form prescribed by the Internal Revenue Service, certifying that it is a
“U.S. branch” and that the payments it receives for the account of others are not effectively
connected with the conduct of its trade or business in the United States and that it is using such
form as evidence of its agreement with each Loan Party to be treated as a U.S. person with respect
to such payments (and each Loan Party and the Administrative Agent agree to so treat the
Administrative Agent as a U.S. Person with respect to such payments), with the effect that each
Loan Party can make payments to the Administrative Agent without deduction or withholding of any
Taxes imposed by the United States.




          SECTION 2.13. Sharing of Payments, Etc. If any Lender Party shall obtain at any time
any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or
otherwise, other than as a result of an assignment pursuant to Section 9.07), (a) on
account of Obligations due and payable to such Lender Party hereunder and under the other Loan
Documents or on account of the Synthetic L/C Deposits or the Revolving Credit-Linked Deposits
maintained by such Lender Party at such time in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations due and payable to such Lender Party or, to the
extent applicable, the Synthetic L/C Deposits or the Revolving Credit-Linked Deposits maintained by
such Lender Party at such time to (ii) the aggregate amount of the Obligations due and payable to
all Lender Parties hereunder and under the other Loan Documents at such time or, to the extent
applicable, the total Synthetic L/C Deposits and Revolving Credit-Linked Deposits maintained by all
Lenders at such time) of payments on account of the Obligations due and payable to all Lender
Parties hereunder and under the other Loan Documents, the Revolving Credit-Linked Deposits or the
Synthetic L/C Deposits maintained by the Lenders, as applicable, at such time obtained by all the
Lender Parties at such time or (b) on account of Obligations owing (but not due and payable) to
such Lender Party hereunder and under the other Loan Documents, the Revolving Credit-Linked
Deposits or the Synthetic L/C Deposits maintained by the Lenders, as applicable, at such time in
excess of its ratable share (according to the proportion of (i) the amount of such Obligations
owing to such Lender Party at such time or the Synthetic L/C Deposits maintained by such Lender
Party at such time, as applicable, to (ii) the aggregate amount of the Obligations owing (but not
due and payable) to all Lender Parties hereunder and under the other Loan Documents at such time)
of payments on account of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the other Loan Documents or the total Synthetic L/C Deposits or the Revolving
Credit-Linked Deposits maintained by the Lenders, as applicable, at such time obtained by all of
the Lender Parties at such time, such Lender Party shall forthwith purchase from the other Lender
Parties such interests or participating interests in the Obligations, the Revolving Credit-Linked
Deposits or Synthetic L/C Deposits due and payable or owing to them, as the case may be, as shall
be necessary to cause such purchasing Lender Party to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment is thereafter recovered
from such purchasing Lender Party, such purchase from each other Lender Party shall be rescinded
and such other Lender Party shall repay to the purchasing Lender Party the purchase price to the
extent of such Lender Party’s ratable share (according to the proportion of (i) the purchase price
paid to such Lender Party to (ii) the aggregate purchase price paid to all Lender Parties) of such



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recovery together with an amount equal to such Lender Party’s ratable share (according to the
proportion of (i) the amount of such other Lender Party’s required repayment to (ii) the total
amount so recovered from the purchasing Lender Party) of any interest or other amount paid or
payable by the purchasing Lender Party in respect of the total amount so recovered. The Loan
Parties agree that any Lender Party so purchasing an interest or participating interest from
another Lender Party pursuant to this Section 2.13 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with respect to such
interest or participating interest, as the case may be, as fully as if such Lender Party were the
direct creditor of the Loan Parties in the amount of such interest or participating interest, as
the case may be.




          SECTION 2.14. Use of Proceeds. (a) The proceeds of the Term B Loans shall be
available (and the Borrower agrees that it shall use such proceeds) solely (i) to refinance all
outstanding indebtedness under the Existing Credit Agreements, (ii) to provide working capital for
the Loan Parties, (iii) to fund the Distribution and the Tender Offer of EBG Holdings, and (iv) pay
transaction fees and expenses.




          (b) The proceeds of the Revolving Credit Loans shall be available (and the Borrower agrees
that it shall use such proceeds) solely (i) to provide working capital for the Loan Parties and
(ii) for the Loan Parties’ other general corporate purposes.




          (c) The proceeds and issuances of Synthetic Letters of Credit shall be available (and the
Borrower agrees that it shall use such proceeds and Synthetic Letters of Credit) solely (i) to
provide credit support in respect of the Borrower’s and the Guarantor’s working capital needs
including in respect of Permitted Commodity Hedge and Power Sale Agreements, (ii) to fulfill in
whole or in part the First Lien Debt Service Reserve Requirement and the Second Lien Debt Service
Reserve Requirement under (and as defined in) the Second Lien Credit Agreement and (iii) to provide
support for other performance obligations of the Loan Parties.




          SECTION 2.15. Change of Control Prepayment. (a) No later than three (3) Business
Days after the occurrence of a Change of Control, the Borrower shall through the Administrative
Agent offer to each Lender (by delivery of a prepayment offer to the Administrative Agent) to
prepay all (but not part) of its outstanding Loans and return all outstanding Synthetic L/C
Deposits and all outstanding Revolving Credit-Linked Deposits in accordance with this Section
2.15. The prepayment offer may be conditioned on the occurrence of such Change of Control (if
made prior to such occurrence) and otherwise shall be irrevocable and shall state: (i) the
proposed date of such prepayment and/or return (which date shall be no earlier than (x) the end of
the Offer Period and (y) the date of the applicable Change of Control and no later than ten (10)
Business Days from the date of the applicable Change of Control) (or, if later, the end of the
Offer Period); (ii) the prepayment price (which, with respect to each Lender, shall be calculated
as the sum of (w) the aggregate principal amount of the outstanding Loans made by, and Synthetic
L/C Deposits and Revolving Credit-Linked Deposits of, such Lender, (x) without duplication, an
amount equal to 1.00% of the aggregate principal amount of such outstanding Loans made by, and
Synthetic L/C Deposits and Revolving Credit-Linked Deposits of, such Lender, (y) all accrued and
unpaid interest on such Loans and Synthetic L/C



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Deposits and Revolving Credit-Linked Deposits and (z) all accrued interest on the principal
amount being repaid, prepaid or returned and any amounts owing pursuant to Section
9.04(c)); (iii) that each Lender that accepts such prepayment offer must accept such offer with
respect to all (but not part) of its Loans, Revolving Credit-Linked Deposits and Synthetic L/C
Deposits; (iv) that each Lender must accept such offer by delivering notice of such acceptance to
the Administrative Agent within ten (10) days after the date the Borrower makes its offer to such
Lender (the “Offer Period”); and (v) in reasonable detail, the nature of the applicable Change of
Control and the projected impact of such Change of Control on the Projects, the operations thereof
and the Borrower and the Guarantors.




          (b) The Borrower shall comply with the terms of each such prepayment offer. Each Lender shall
have the right to accept such offer prior to the expiration of the applicable Offer Period.




          (c) Notwithstanding anything to the contrary herein, the Borrower shall not request, nor shall
any Lender be obligated to make, any Loans under the Revolving Credit Facility or issue Synthetic
Letters of Credit under the Synthetic L/C Facility from and after the date of a Change of Control
until the date the Borrower prepays Loans of and/or returns Synthetic L/C Deposits and Revolving
Credit-Linked Deposits to all of the Lenders who have accepted a prepayment offer in accordance
with this Section 2.15.




          (d) The Commitments of each Lender that accepts a prepayment offer in accordance with this
Section 2.15 shall terminate in its entirety on the date such Lender’s Loans are repaid or,
if later, scheduled to be repaid or returned.




          SECTION 2.16. Evidence of Debt. (a) Each Lender Party shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan owing to such Lender Party from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender Party to the Borrower (with a copy of such notice to
the Administrative Agent) to the effect that a promissory note or other evidence of indebtedness is
required or appropriate in order for such Lender Party to evidence (whether for purposes of pledge,
enforcement or otherwise) the Loans owing to, or to be made by, such Lender Party, the Borrower
shall promptly execute and deliver to such Lender Party, with a copy to the Administrative Agent, a
Revolving Credit Note, a Synthetic L/C Note and a Term B Note, as applicable, in substantially the
form of Exhibits A-1, A-2 and A-3 hereto, respectively, payable to the
order of such Lender Party in a principal amount equal to the Revolving Credit Commitment,
Synthetic L/C Loans and Term B Loans, respectively, of such Lender Party. All references to Notes
in the Loan Documents shall mean Notes, if any, to the extent issued hereunder.




          (b) The Register maintained by the Administrative Agent pursuant to Section 9.07(e)
shall include a control account and a subsidiary account for each Lender Party, in which accounts
(taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the
Type of Loans comprising such Borrowing and, if appropriate, the Interest Period applicable
thereto, (ii) the terms of each Assignment and Acceptance delivered to and



64









 






accepted by it, (iii) the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender Party hereunder and (iv) the amount of any sum received by
the Administrative Agent from the Borrower hereunder and each Lender Party’s share thereof.




          (c) Entries made in good faith by the Administrative Agent in the Register pursuant to
subsection (b) above, and by each Lender Party in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount of principal and interest
due and payable or to become due and payable from the Borrower to, in the case of the Register,
each Lender Party and, in the case of such account or accounts, such Lender Party, under this
Agreement, absent manifest error; provided, however, that the failure of the Administrative Agent
or such Lender Party to make an entry, or any finding that an entry is incorrect, in the Register
or such account or accounts shall not limit or otherwise affect the obligations of the Borrower
under this Agreement.




          SECTION 2.17. Duty to Mitigate. In the event that any Lender Party demands payment
of costs or additional amounts pursuant to Section 2.10 or 2.12 or asserts,
pursuant to Section 2.10(d), that it is unlawful for such Lender Party to make Eurodollar
Rate Loans then (subject to such Lender Party’s right to rescind such demand or assertion within 10
days after the notice from the Borrower referred to below) the Borrower may, upon 20 days’ prior
written notice to such Lender Party and the Administrative Agent, elect to cause such Lender Party
to assign its Loans and Commitments in full to one or more Persons selected by the Borrower so long
as (i) each such Person satisfies the criteria of an Eligible Assignee and is reasonably
satisfactory to the Administrative Agent and any Synthetic Issuing Bank, (ii) such Lender Party
receives payment in full in cash of the outstanding principal amount of all Loans made by it and
all accrued and unpaid interest thereon and all other amounts due and payable to such Lender Party
as of the date of such assignment (including, without limitation, amounts owing pursuant to
Sections 2.10, 2.12 and 9.04) and (iii) each such assignee agrees to accept
such assignment and to assume all obligations of such Lender Party hereunder in accordance with
Section 9.07.




          SECTION 2.18. Revolving Credit-Linked Deposit Accounts.




          (a) Establishment of Revolving Credit-Linked Deposit Account and Revolving Credit-Linked
Sub-Accounts. On or prior to the Effective Date, the Administrative Agent shall establish a
Revolving Credit-Linked Deposit Account with the title “Revolving Credit Lenders (Boston Gen)
Credit-Linked Deposit Account”. The Administrative Agent shall maintain records enabling it to
determine at any time the amount of the interest of each Revolving Credit Lender in the Revolving
Credit-Linked Deposit Account (the interest of each Revolving Credit Lender in the Revolving
Credit-Linked Deposit Account, as evidenced by such records, being referred to as such Lender’s
“Revolving Credit-Linked Sub-Account”). The Administrative Agent shall establish such additional
Revolving Credit-Linked Sub-Accounts for assignee Lenders as shall be required pursuant to
Section 9.07(b). No Person (other than the Administrative Agent) shall have the right to
make any withdrawal from the Revolving Credit-Linked Deposit Account or to exercise any other right
or power with respect thereto. Without limiting the generality of the foregoing, each party hereto
acknowledges and agrees that the



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Revolving Credit-Linked Deposits are and (subject to the last paragraph of Article VI)
will at all times be solely the property of the Revolving Credit Lenders, that the Revolving
Credit-Linked Deposits shall be used solely in accordance with this Agreement and that no amount on
deposit at any time in the Revolving Credit-Linked Deposit Account shall be the property of any of
the Loan Parties, constitute collateral for any Obligations of the Loan Parties under the Loan
Documents or otherwise be available in any manner to satisfy any Obligations of any of the Loan
Parties under the Loan Documents. Each Revolving Credit Lender agrees that its right, title and
interest in and to the Revolving Credit-Linked Deposit Account shall be limited to the right to
require amounts in its Revolving Credit-Linked Sub-Account to be applied as provided in Section
2.18(c) below and that it will have no right to require the return of its Revolving
Credit-Linked Deposit other than as expressly provided in such Section 2.18(c) (each
Revolving Credit Lender hereby acknowledging that its Revolving Credit-Linked Deposit constitutes
payment for its participations in Revolving Credit Loans made or to be made hereunder and that the
Fronting Bank will be making Revolving Credit Loans in reliance on the availability of such
Lender’s Revolving Credit-Linked Deposit to discharge such Lender’s obligations in accordance with
Section 2.18(i)). The funding of the Revolving Credit-Linked Deposits and the agreements
with respect thereto set forth in this Agreement constitute arrangements solely among the
Administrative Agent, the Fronting Bank and the Revolving Credit Lenders with respect to the
funding and reimbursement obligations of the Revolving Credit Lenders under this Agreement, and do
not constitute loans, extensions of credit or other financial accommodations to any Loan Party. No
Loan Party shall have any responsibility or liability to the Revolving Credit Lenders, the
Administrative Agent or any other Person in respect of the establishment, maintenance,
administration or misappropriation of the Revolving Credit-Linked Deposit Account (or any Revolving
Credit-Linked Sub-Account) or with respect to the investment of amounts held therein, including
pursuant to Section 2.18(d) below.




          (b) Deposits in Revolving Credit-Linked Deposit Account. The following amounts will
be deposited in the Revolving Credit-Linked Deposit Account at the following times:





     (i) On the Effective Date, each Revolving Credit Lender shall deposit in the Revolving
Credit-Linked Deposit Account an amount in Dollars equal to such Lender’s Revolving Credit
Commitment. Thereafter, the Revolving Credit-Linked Deposits shall be available, on the
terms and subject to the conditions set forth herein, for application pursuant to
Section 2.18(i) to pay such Lender’s Applicable Revolving Credit Percentage of the
principal of Revolving Credit Loans that are not paid when due (at stated maturity, by
acceleration or otherwise).




     (ii) On any date prior to the Revolving Credit Termination Date on which the
Administrative Agent or the Fronting Bank receives any payment of principal of Revolving
Credit Loans, with respect to which amounts were withdrawn from the Revolving Credit-Linked
Deposit Account to reimburse or pay the Fronting Bank, subject to clause (iii)
below, the Administrative Agent shall deposit in the Revolving Credit-Linked Deposit
Account, and credit to the Revolving Credit-Linked Sub-Accounts of the



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Revolving Credit Lenders, the portion of such reimbursement or other payment to be
deposited therein, in accordance with Sections 2.18(i).




     (iii) If at any time when any amount is required to be deposited in the Revolving
Credit-Linked Deposit Account under clause (ii) above the sum of such amount and the
aggregate amount of the Revolving Credit-Linked Deposits at such time would exceed the
higher of the total aggregate Revolving Credit Commitments and the Revolving Credit
Exposure, then such excess shall not be deposited in the Revolving Credit-Linked Deposit
Account and the Administrative Agent shall instead pay to each Revolving Credit Lender its
Applicable Revolving Credit Percentage of such excess.




     (iv) Concurrently with the effectiveness of any assignment by any Revolving Credit
Lender of all or any portion of its Revolving Credit Commitment, the Administrative Agent
shall transfer into the Revolving Credit-Linked Sub-Account of the assignee the
corresponding portion of the amount on deposit in the assignor’s Revolving Credit-Linked
Sub-Account in accordance with Section 9.7(b).



          (c) Withdrawals From and Closing of Revolving Credit-Linked Deposit Account. Each
Revolving Credit Lender irrevocably and unconditionally agrees that its deposit in the Revolving
Credit-Linked Deposit Account shall be withdrawn and distributed (or transferred, in the case of
clause (v) below) as follows:





     (i) In the event the Borrower fails to pay when due (at stated maturity, by
acceleration or otherwise) any principal of any Revolving Credit Loan, the Administrative
Agent shall withdraw from the Revolving Credit-Linked Deposit Account (and debit each
Lender’s Revolving Credit-Linked Deposit Sub-Account in the amount of) such Lender’s
Applicable Revolving Credit Percentage of the amount of such principal not paid when due and
the Revolving Credit Commitment shall be reduced by such amount.




     (ii) At any time and from time to time, if the Fronting Bank, in its sole discretion,
directs the Administrative Agent to withdraw an amount from the Revolving Credit-Linked
Deposit Account sufficient to repay all outstanding Revolving Credit Loans or any portion
thereof, the Administrative Agent shall withdraw from the Revolving Credit-Linked Deposit
Account (and debit each Lender’s Revolving Credit-Linked Deposit Sub-Account in the amount
of) such Lender’s Applicable Revolving Credit Percentage of such amount so directed and the
Revolving Credit Commitment shall be reduced by such amount. Additionally, the Fronting
Bank, in its sole discretion, may direct the Administrative Agent to fund a Revolving Credit
Loan directly with amounts on deposit in the Revolving Credit-Linked Deposit Account (and
such Revolving Credit Loan shall immediately become a Funded Revolving Credit Loan as set
forth in clause (iii)).




     (iii) Upon the withdrawal of any amounts on deposit in the Revolving Credit-Linked
Deposit Account pursuant to clause (c)(i) or (ii), each Revolving Credit
Lender shall be deemed to have made a loan (relative to each Revolving Credit Lender, its



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“Funded Revolving Credit Loan”) to the Borrower in an amount equal to such Revolving
Credit Lender’s Applicable Revolving Credit Percentage of the amount withdrawn from the
Revolving Credit-Linked Deposit Account. The Borrower may elect to have Funded Revolving
Credit Loans accrue as Eurodollar Rate Loans or Base Rate Loans as further set forth in
Section 2.09. The Borrower may repay Funded Revolving Credit Loans by making
deposits into the Revolving Credit-Linked Deposit Account, which will not cause a reduction
in the Revolving Credit Commitment.




     (iv) Concurrently with the effectiveness of any assignment by any Revolving Credit
Lender of all or any portion of its Revolving Credit Commitment, the corresponding portion
of the assignor’s Revolving Credit-Linked Sub-Account shall be transferred from the
assignor’s Revolving Credit-Linked Sub-Account to the assignee’s Revolving Credit-Linked
Sub-Account in accordance with Section 9.07(b) and, if required by Section
9.07(b), the Administrative Agent shall close such assignor’s Revolving Credit-Linked
Sub-Account.




     (v) Upon the reduction of each of the Revolving Credit Commitments to zero, the
Administrative Agent shall withdraw from the Revolving Credit-Linked Deposit Account and pay
to each Revolving Credit Lender the entire remaining amount of such Lender’s Revolving
Credit-Linked Deposit, and shall close the Revolving Credit-Linked Deposit Account.



     Each Revolving Credit Lender irrevocably and unconditionally agrees that its Revolving
Credit-Linked Deposit may be applied or withdrawn from time to time as set forth in this
Section 2.18(c).



          (d) Deposit Earnings. Each of the Administrative Agent, the Fronting Bank and each
Revolving Credit Lender hereby acknowledges and agrees that (i) each Revolving Credit Lender is
funding its Revolving Credit-Linked Deposit to the Administrative Agent for application in the
manner contemplated by Section 2.18(i), (ii) the Administrative Agent has agreed to invest
the Revolving Credit-Linked Deposits in Cash Equivalents and (iii) the Administrative Agent shall
pay to the Revolving Credit Lenders a return on such Revolving Credit-Linked Deposit (except during
periods when such Revolving Credit-Linked Deposits are used to cover Revolving Credit Loans that
have not been repaid when due (at stated maturity, by acceleration or otherwise)) equal at any time
to (x) the Eurodollar Rate for a three-month interest period (provided, however that the initial
Interest Period shall be the period commencing on the Effective Date and ending on March 30, 2007)
minus (y) 12.5 basis points. Such interest will be paid to the Revolving Credit Lenders by the
Administrative Agent in arrears on each day on the last day of the interest period applicable to
such Revolving Credit-Linked Deposit (which corresponds to the date on which fees are due and
payable to the Revolving Credit Lenders under Section 2.08). Any amounts earned and received with
respect to Revolving Credit-Linked Deposits during any applicable Interest Period in excess of the
Eurodollar Rate for the Interest Period in effect shall be for the account of the Administrative
Agent. No Person other than the Administrative Agent shall have any obligation under or in respect
of this clause. Notwithstanding anything to the contrary in this Agreement, the Borrower shall not
be liable for



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any losses due to (i) the misappropriation of any Revolving Credit-Linked Deposit or return
thereon or (ii) the failure of the Administrative Agent to pay a return to any Revolving Credit
Lender (it being understood and agreed for greater certainty that this clause shall not limit any
obligation of the Borrower hereunder to pay any fees pursuant to Section 2.08, repay any
Revolving Credit Loan or Funded Revolving Credit Loan). Neither the Administrative Agent, the
Fronting Bank nor any other Person guarantees any rate of return on the investment of any Revolving
Credit-Linked Deposit held in the Revolving Credit-Linked Deposit Account.




          (e) Sufficiency of Deposits to Provide for Revolving Credit Exposure. Notwithstanding
any other provision of this Agreement, no Revolving Credit Loan shall be made, if after giving
effect thereto the aggregate amount of the Revolving Credit Exposures would exceed the aggregate
amount of the Revolving Credit-Linked Deposits.




          (f) Satisfaction of Lender Funding Obligations. The Borrower and the Fronting Bank
acknowledge and agree that, notwithstanding any other provision contained herein (but without
limiting the obligations of any Revolving Credit Lender under Section 7.05), the deposit by
each Revolving Credit Lender in the Revolving Credit-Linked Deposit Account on the Effective Date
of funds equal to its Revolving Credit Commitment will fully discharge the obligation of such
Lender to fund Loans by such Lender pursuant to Section 2.01, and that no other or further
payments shall be required to be made by any Revolving Credit Lender in respect of any such funding
or reimbursement obligations.




          (g) Security. Each Revolving Credit Lender hereby grants to the Fronting Bank a first
priority security interest in such Revolving Credit Lender’s Revolving Credit-Linked Deposit to
secure the obligations of such Revolving Credit Lender under Section 2.18(i).




          (h) Fronting Bank Insecure. If the Fronting Bank is enjoined from taking any action
referred to in Section 2.18(c), or if the Fronting Bank reasonably determines that, by
operation of law, it may reasonably be precluded from taking any such action, or if any Loan Party
or Revolving Credit Lender challenges in any legal proceeding any of its respective
acknowledgements, agreements or characterizations set forth in Section 2.18(a), then, in
any such case (and so long as such event or condition shall be continuing), and notwithstanding
anything contained herein to the contrary, the Fronting Bank shall not be required to make any
Revolving Credit Loan.




          (i) Reimbursement of Fronting Bank. If the Borrower fails to pay when due (at stated
maturity, by acceleration or otherwise) any principal of any Revolving Credit Loan, the Fronting
Bank shall direct the Administrative Agent to withdraw from the Revolving Credit-Linked Deposit
Account (and debit each Revolving Credit Lender’s Revolving Credit-Linked Sub-Account in the amount
of) such Lender’s Applicable Revolving Credit Percentage of the amount of such principal not paid
when due. Promptly following receipt by the Administrative Agent of any payment from the Borrower
of principal of Revolving Credit Loans, the Administrative Agent shall distribute such payment to
the Fronting Bank or, to the extent that amounts have been withdrawn from the Revolving
Credit-Linked Deposit Account to make any payment pursuant to this paragraph to the Fronting Bank,
then such payment shall be deposited in the Revolving Credit-Linked Deposit Account (and credited
to each Revolving Credit



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Lender’s Revolving Credit-Linked Sub-Account in the amount of such Lender’s Applicable
Revolving Credit Percentage of such deposit). Any payment made with amounts withdrawn from the
Revolving Credit-Linked Deposit Account to pay the Fronting Bank for any defaulted principal
payment shall constitute the funding by the respective Revolving Credit Lender of its participation
in the related Revolving Credit Loan and shall not constitute a new Loan or relieve the Borrower of
its obligation to pay such principal.




ARTICLE III




CONDITIONS TO EFFECTIVENESS AND OF LENDING

AND ISSUANCES OF SYNTHETIC LETTERS OF CREDIT




          SECTION 3.01. Conditions Precedent. Section 2.01 of this Agreement shall
become effective on and as of the first date on or before December 21, 2006 (the “Effective Date”)
on which the following conditions precedent have been satisfied (and the obligation of each Lender
to make a Loan or any Synthetic Issuing Bank to issue a Synthetic Letter of Credit on the occasion
of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions
precedent before or concurrently with the Effective Date):





     (a) The Administrative Agent shall have received on or before the Effective Date the
following, each dated as of such date (unless otherwise specified) and in form and substance
reasonably satisfactory to the Administrative Agent:




     (i) The Notes payable to the order of the Lenders to the extent requested by
the Lenders pursuant to the terms of Section 2.16.




     (ii) The First Lien Security Agreement substantially in the form of Exhibit
K duly executed by the Borrower, each Guarantor and the First Lien Collateral
Agent, together with:




     (A) confirmation reasonably satisfactory to the Administrative Agent
that (1) certificates (if any) representing the Initial Pledged Equity (as
defined in the First Lien Security Agreement) accompanied by undated
membership interest powers or stock powers, as applicable, executed in
blank, and (2) instruments evidencing the Initial Pledged Debt (as defined
in the First Lien Security Agreement), indorsed in blank, in each case, have
been delivered to the First Lien Collateral Agent,




     (B) appropriately completed financing statements in form appropriate
for filing under the Uniform Commercial Code in the State of Delaware,
covering the Collateral described in the First Lien Security Agreement,




     (C) completed requests for information or similar search reports, dated
on or not more than 14 days before the Effective Date,



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listing all effective financing statements filed in the jurisdictions
referred to in clause (B) above that name any Loan Party as debtor,
together with copies of such other financing statements,




     (D) certified copies of each Material Contract,




     (E) each First Lien Consent and Agreement in respect of each Initial
Commodity Hedge and Power Sale Agreement and each other Material Contract
then in effect (other than each of the Material Contracts set forth on Part
III of Schedule 4.01(t)), duly executed by each party to such Initial
Commodity Hedge and Power Sale Agreement or Material Contract, as
applicable, and




     (F) evidence that all other action that the Administrative Agent and
the First Lien Collateral Agent may deem reasonably necessary in order to
perfect and protect the first priority liens and security interests created
under the First Lien Security Agreement has been taken (including, without
limitation, receipt of duly executed payoff letters and UCC-3 termination
statements).




     (iii) The First Lien Pledge Agreement substantially in the form of Exhibit
L duly executed by EBG Holdings and the First Lien Collateral Agent, together
with:




     (A) Confirmation reasonably satisfactory to the Administrative Agent
that certificates, if any, representing the Initial Pledged Equity (as
defined in the First Lien Pledge Agreement) accompanied by undated
membership interest powers or stock powers, as applicable, executed in blank
have been delivered to the First Lien Collateral Agent,




     (B) appropriately completed financing statements in form appropriate
for filing under the Uniform Commercial Code in the State of Delaware,
covering the Collateral described in the First Lien Pledge Agreement,




     (C) completed requests for information or similar search reports, dated
on or not more than 14 days before the Effective Date, listing all effective
financing statements filed in the jurisdictions referred to in clause (B)
above that name EBG Holdings as debtor, together with copies of such other
financing statements, and




     (D) evidence that all other action that the Administrative Agent and
the First Lien Collateral Agent may deem reasonably necessary in order to
perfect and protect the first priority liens and security interests created
under the First Lien Pledge Agreement has been taken (including,



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without limitation, receipt of duly executed payoff letters and UCC-3
termination statements).




     (iv) Original counterparts of the mortgages, deeds of trust or security deeds
encumbering each of the Real Properties and substantially in the form of Exhibit
D (the “First Lien Mortgages”) duly executed and delivered by the appropriate
Loan Party in recordable form, together with:




     (A) to the extent necessary under applicable law, Uniform Commercial
Code Financing Statements covering fixtures (“UCC Fixture Filings”)
appropriately completed for filing in the appropriate filing or recording
offices,




     (B) evidence that counterparts of the First Lien Mortgages and UCC
Fixture Filings have been either (x) duly recorded on or before the
Effective Date or (y) duly executed, acknowledged and delivered to the Title
Company in form suitable for filing or recording, in all filing or recording
offices necessary in order to create a valid first and subsisting Lien on
the property described therein in favor of the First Lien Collateral Agent
for the benefit of the First Lien Secured Parties and that all filing and
recording taxes and fees have been paid to the Title Company,




     (C) certified copies of the fully paid American Land Title Association
Lender’s Extended Coverage title insurance policies or an irrevocable
written commitment to issue mortgage title policies or marked-up
unconditional binders for such insurance (the “First Lien Mortgage
Policies”) in amounts and in form and substance, and with endorsements
(including zoning endorsements) to the extent available, reasonably
acceptable to the Administrative Agent and the First Lien Collateral Agent,
issued by the Title Company, reinsured by title insurers reasonably
acceptable to the Administrative Agent and the First Lien Collateral Agent,
insuring the First Lien Mortgages to be valid first and subsisting Liens on
the property described therein, free of all defects (including, but not
limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting
only Permitted Liens, and providing for such other affirmative insurance, to
the extent available (including endorsements for future advances under the
Loan Documents and for mechanics’ and materialmen’s Liens), in form
acceptable to the Administrative Agent and the First Lien Collateral Agent,




     (D) certified copies of American Land Title Association/American
Congress on Surveying and Mapping form surveys, for which all necessary fees
(where applicable) have been paid, and dated no more than 60 days before the
Effective Date, certified to the Administrative Agent and the First Lien
Collateral Agent and the Title Company using a form of certification
reasonably acceptable to the Administrative Agent



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and the First Lien Collateral Agent by a land surveyor duly registered
and licensed in the States in which the property described in such surveys
is located showing the matters required by such certification and the
absence of material encroachments and any other material defects other than
encroachments or other defects acceptable to the Administrative Agent and
the First Lien Collateral Agent,




     (E) Proof of payment to the Title Company of (A) all expenses and
premiums of the Title Company in connection with the issuance of the First
Lien Mortgage Policies and (B) an amount equal to any fees or taxes
including, without limitation, the recording, mortgage, intangible, transfer
and stamp taxes payable in connection with recording the First Lien
Mortgages and UCC Fixture Filings, if applicable, in the appropriate
government office(s),




     (F) Certified copies of permanent and unconditional certificates of
occupancy (or, if it is not the practice to issue certificates of occupancy
in a jurisdiction in which the facilities to be covered by the Mortgages are
located, then such other evidence reasonably satisfactory to the
Administrative Agent and the First Lien Collateral Agent) permitting the
fully functioning operation and occupancy of each such facility and of such
other permits necessary for the use and operation of each such facility
issued by the respective governmental authorities having jurisdiction over
each such facility, and




     (G) evidence of the insurance required by the terms of the First Lien
Mortgages.




     (v) The Intercreditor Agreement substantially in the form of Exhibit G
duly executed by the Borrower, the Guarantors, EBG Holdings, the First Lien
Collateral Agent, the Second Lien Collateral Agent, the Administrative Agent, the
Second Lien Administrative Agent, and Credit Suisse Energy LLC.




     (vi) The Security Deposit Agreement substantially in the form of Exhibit
H duly executed by the Borrower, each Guarantor, the First Lien Collateral
Agent, the Second Lien Collateral Agent and the Depositary.




     (vii) Certified copies of the resolutions of the sole members of the Borrower
and the Board of Directors of EBG Holdings and authorizations of the sole member or
Board of Directors, as applicable, of each other Guarantor approving the Transaction
and each Transaction Document to which it is or is to be a party, and of all
documents evidencing other necessary corporate action and governmental and other
third party approvals and consents, if any, with respect to the Transaction and each
Transaction Document to which it is or is to be a party.



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     (viii) A copy of a certificate of the Secretary of State of Delaware, dated
reasonably near the Effective Date certifying (A) as to a true and correct copy of
the certificate of formation or certificate of incorporation, as the case may be, of
each Loan Party and EBG Holdings and each amendment thereto on file in such
Secretary’s office and (B) that (1) such amendments are the only amendments to such
Loan Party’s and EBG Holding’s certificate of formation or certificate of
incorporation, as the case may be, on file in such Secretary’s office, (2) to the
extent applicable, each of such Loan Party and EBG Holdings has paid all franchise
taxes to the date of such certificate and (3) to the extent applicable, each of such
Loan Party and EBG Holdings is duly formed and in good standing or presently
subsisting under the laws of the State of Delaware.




     (ix) A certificate of each Loan Party and EBG Holdings signed on behalf of such
Loan Party and EBG Holdings by a Responsible Officer thereof, dated the Effective
Date (the statements made in such certificate shall be true on and as of the
Effective Date), certifying as to (A) the absence of any amendments to the
certificate of formation or certificate of incorporation, as the case may be, of
such Loan Party or EBG Holdings (as applicable) since the date of the Secretary of
State’s certificate referred to in Section 3.01(a)(viii), (B) a true and
correct copy of the limited liability company agreement or bylaws, as the case may
be, of such Loan Party or EBG Holdings (as applicable) as in effect on the date on
which the resolutions referred to in Section 3.01(a)(vii) were adopted and
on the Effective Date, (C) the due formation and good standing or valid existence of
such Loan Party or EBG Holdings (as applicable) as a limited liability company or
corporation, as the case may be, organized under the laws of the jurisdiction of its
formation, and the absence of any proceeding for the dissolution or liquidation of
such Loan Party or EBG Holdings (as applicable) and (D) the truth in all material
respects of the representations and warranties contained in the Loan Documents as
though made on and as of the Effective Date.




     (x) Certificates of EBG Holdings and each of the Loan Parties executed by an
authorized officer thereof in each case certifying the name and true signature of
the officer of EBG Holdings or such Loan Party authorized to sign each Transaction
Document to which it is or is to be a party and the other documents to be delivered
hereunder and thereunder.




     (xi) Certified copies of each of the Related Documents, duly executed by the
parties.




     (xii) Certificates in substantially the form of Exhibit E, attesting to
(A) the Solvency of EBG Holdings and its Subsidiaries on a Consolidated basis after
giving effect to the Transaction and the other transactions contemplated thereby,
and (B) the Solvency of the Borrower and its Subsidiaries on a Consolidated basis
after giving effect to the Transactions and the other



74









 





 transactions contemplated
hereby, in each case from the director of finance of EBG Holdings.



     (xiii) (A) A certified hard copy of, and a computer disk containing, pro forma
balance sheets, income statements and cash flow statements with respect to EBG
Holdings consolidated with its Subsidiaries for the period through Fiscal Year 2014,
on a quarterly basis for the period from January 1, 2007 through December 31, 2008
and on an annual basis for each year thereafter (the “Base Case Projections”) and
(B) a certified copy of the operating budget for the Borrower and its Subsidiaries
for Fiscal Year 2007 (the “Initial Operating Budget”).




     (xiv) (A) Certified copies of audited financial statements of the Borrower and
its Subsidiaries dated December 31, 2005 and interim financial statements of the
Borrower and its Subsidiaries dated the end of each Fiscal Quarter ending since
December 31, 2005, and (B) the Consolidated pro forma balance sheet of the Borrower
and its Subsidiaries as of September 30, 2006, and the related Consolidated pro
forma statement of income of the Borrower and its Subsidiaries for the twelve-month
period then ended.




     (xv) Copies of final due diligence reports updated within 30 days of the
Effective Date from the following consultants in form and substance reasonably
satisfactory to the Administrative Agent: (A) the Independent Engineer; (B) the
Independent Power Market Consultant; and (C) the Independent Insurance Consultant.




     (xvi) Copies of all certificates representing the policies, endorsements and
other documents required under Section 5.01(d) to be in effect as of the
Effective Date, accompanied by (A) a certificate of the Borrower signed by a
Responsible Officer certifying that the copies of each of the policies, endorsements
and other documents delivered pursuant to this Section 3.01(a)(xvi) are
true, correct and complete copies thereof, (B) letters from the Borrower’s insurance
brokers or insurers, dated not earlier than fifteen (15) days prior to the Effective
Date, stating with respect to each such insurance policy that (1) such policy is in
full force and effect, (2) all premiums theretofore due and payable thereon have
been paid and (3) the underwriters of such insurance have agreed that the policies,
when issued, will contain the provisions required under Section 5.01(d) and
(C) a certificate from the Independent Insurance Consultant in form and substance
reasonably satisfactory to the Lenders confirming that such required insurance is in
full force and effect in accordance with the terms of this Agreement.




     (xvii) A favorable opinion of Debevoise & Plimpton LLP, counsel for the Loan
Parties, in form and substance reasonably satisfactory to the Administrative Agent.



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     (xviii) Favorable opinions of Nutter, McClennen & Fish LLP, local counsel for
the Loan Parties with respect to the enforceability and perfection of each First
Lien Mortgage and any related fixture filings and with respect to local
permitting, in each case, in form and substance reasonably satisfactory to the
Administrative Agent.




     (xix) A favorable opinion of White & Case LLP, special federal energy
regulatory counsel for the Loan Parties, in form and substance reasonably
satisfactory to the Administrative Agent.




     (xx) Account control agreements reasonably acceptable to the Administrative
Agent and the First Lien Collateral Agent for the Local Accounts executed by the
depositary financial institution holding such accounts and the applicable Loan
Parties.




     (xxi) Reasonable evidence that, concurrent with or promptly following the
consummation of the transaction contemplated hereby, (A) the Accounts have been
established in accordance with the requirements of the Security Deposit Agreement,
and (B) after giving effect to the Borrowings to be made on the Effective Date, the
First Lien Debt Service Reserve Requirement has been satisfied.



          (b) [Reserved].




          (c) The Lender Parties shall be reasonably satisfied that:





     (i) all Existing Debt, other than Surviving Debt, has been (or is
contemporaneously being) prepaid, redeemed or defeased in full or otherwise
satisfied and extinguished and all commitments relating thereto terminated (or
contemporaneously therewith terminated) and that all Surviving Debt is on terms and
conditions reasonably satisfactory to the Lender Parties;




     (ii) all Liens securing payment of any Existing Debt shall have been released;
and




     (iii) the Administrative Agent shall have received all Uniform Commercial Code
Form UCC-3 termination statements, mortgage releases, pay-off letters and other
instruments as may be necessary or desirable, in the reasonable judgment of the
Administrative Agent, in connection therewith.




     (d) Before giving effect to the Transaction, there shall have occurred no Material
Adverse Change since December 31, 2005.




     (e) Except as set forth on Schedule 4.01(g), there shall exist no action, suit,
investigation, litigation or proceeding affecting EBG Holdings or any Loan Party pending or
threatened in writing before any Governmental Authority that (i) could reasonably be



76









 







expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity
or enforceability of any Loan Document or the consummation of the Transaction.




     (f) Except for any Governmental Authorizations required in connection with the Lender
Parties’ exercise of remedies under the Loan Documents, all Governmental Authorizations and
member, shareholder and third party consents and approvals necessary in connection with the
Transaction or for the ownership and operation of the Projects shall have been obtained
(without the imposition of any conditions that are not acceptable to the Lender Parties) and
shall remain in full force and effect.




     (g) The Borrower shall have paid (or shall be contemporaneously paying from the
proceeds of the Loans) all accrued fees of the Agents and the Lender Parties and all accrued
expenses of the Agents (including the accrued fees and expenses of counsel to the
Administrative Agent and local counsel to the Lender Parties).




     (h) The Administrative Agent shall have received evidence reasonably satisfactory to it
that prior to, or concurrently with, the making of the Initial Extension of Credit
hereunder:




     (i) the Borrower shall have received not less than $350,000,000 in gross cash
proceeds from borrowings under the Second Lien Credit Agreement; and




     (ii) EBG Holdings shall have received not less than $300,000,000 in gross cash
proceeds from borrowings under the Mezzanine Documents.




     (i) The Related Documents, including the Mezzanine Documents, Initial Commodity Hedge
and Power Sale Agreements and the Second Lien Loan Documents, shall have been executed and
delivered by all parties thereto and shall be effective, and all material obligations to be
performed under any such documents on or before the Effective Date shall have been
performed.




     (j) The Facilities shall have been rated by each of S&P and Moody’s.




     (k) The Lenders shall have received, to the extent requested, on or before the date
which is five (5) Business Days prior to the Effective Date, all documentation and other
information required by bank regulatory authorities under applicable “know your customer”
and anti-money laundering rules and regulations including the Patriot Act.




     (l) The Administrative Agent shall have received the Closing Date Summary Funds Flow
Memo substantially in the form attached hereto as Exhibit N (the “Closing Date
Summary Funds Flow Memo”).



          SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance. The obligation of
each Appropriate Lender to make a Loan (other than a Synthetic L/C Loan made by a Synthetic Issuing
Bank) on the occasion of each Borrowing (including the initial Borrowing),



77









 






and the obligation of
each Synthetic Issuing Bank to issue a Synthetic Letter of Credit (including the initial issuance)
shall be subject to the further conditions precedent that on the date of such Borrowing or issuance
the following statements shall be true and the Administrative Agent shall
have received for the account of such Lender or such Synthetic Issuing Bank a certificate
signed by a duly authorized officer of the Borrower, dated the date of such Borrowing or issuance,
stating that (and each of the giving of the applicable Notice of Borrowing or Notice of Issuance
and the acceptance by the Borrower of the proceeds of such Borrowing or of such Synthetic Letter of
Credit shall constitute a representation and warranty by the Borrower that both on the date of such
notice and on the date of such Borrowing or issuance such statements are true):





     (a) the representations and warranties contained in each Loan Document are correct in
all material respects on and as of such date, as though made on and as of such date, before
and after giving effect to such Borrowing or issuance and to the application of the proceeds
therefrom, except for representations and warranties that speak as of an earlier date or
period which shall be true and correct as of such date or period; and




     (b) (i) with respect to the Initial Extension of Credit on the Effective Date, no
Default has occurred and is continuing, or would result from such Initial Extension of
Credit or from the application of proceeds therefrom; and (ii) with respect to each such
Borrowing or issuance after the Effective Date, no Event of Default has occurred and is
continuing, or would result from such Borrowing or issuance or from the application of the
proceeds therefrom.



          SECTION 3.03. Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender Party shall be deemed
to have consented to, approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or satisfactory to the Lender
Parties unless an officer of the Administrative Agent responsible for the transactions contemplated
by the Loan Documents shall have received notice from such Lender Party prior to the Effective Date
specifying its objection thereto and, if the Initial Extension of Credit consists of a Borrowing,
such Lender Party shall not have made available to the Administrative Agent such Lender Party’s
ratable portion of such Borrowing.




ARTICLE IV




REPRESENTATIONS AND WARRANTIES




          SECTION 4.01. Representations and Warranties. Each Loan Party represents and
warrants on behalf of itself as follows:





     (a) Organization. It (i) is a limited liability company or corporation duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
formation, (ii) is duly qualified and in good standing as a limited liability company or
corporation in each other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except where the failure to



78









 







so qualify or be licensed could not be reasonably likely to have a Material Adverse Effect
and (iii) has all requisite limited liability company or corporate (as applicable) power and
authority (including, without limitation, all material Governmental Authorizations) to
own or lease and operate its properties and to carry on its business as now conducted
and as proposed to be conducted.




     (b) Location. Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Loan Parties and their Subsidiaries, showing as of the date hereof (as
to each Loan Party and each such Subsidiary) the jurisdiction of its formation or
incorporation (as applicable), the address of its principal place of business and its U.S.
taxpayer identification number. The copy of the certificate of formation or certificate of
incorporation, as applicable, of each Loan Party and each amendment thereto provided
pursuant to Section 3.01(a)(viii) is a true and correct copy of each such document,
each of which is valid and in full force and effect.




     (c) Ownership Information. Set forth on Schedule 4.01(c) hereto is a
complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date
hereof (as to each such Subsidiary) the jurisdiction of its formation, the number of shares
or membership interests (as applicable) of each class of its Equity Interests authorized,
and the number outstanding, on the date hereof and the percentage of each such class of its
Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares
or membership interests (as applicable) covered by all outstanding options, warrants, rights
of conversion or purchase and similar rights at the date hereof. All of the outstanding
Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid
and non-assessable and are owned by such Loan Party or one or more of its Subsidiaries free
and clear of all Liens, except those created under the First Lien Collateral Documents, the
Second Lien Collateral Documents or Permitted Liens.




     (d) Authorization; Non-Contravention. The execution, delivery and performance
by each Loan Party of each Transaction Document to which it is or is to be a party, and the
consummation of the Transaction, are within such Loan Party’s limited liability company or
corporate (as applicable) powers, have been duly authorized by all necessary limited
liability company or corporate (as applicable) action, and do not (i) contravene such Loan
Party’s limited liability company agreement, certificate of incorporation, bylaws or other
constituent documents, (ii) violate any law, rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve System), order,
writ, judgment, injunction, decree, determination or award applicable to or binding on it,
(iii) conflict with or result in the breach of, or constitute a default or require any
payment to be made under, a Contractual Obligation of any Loan Party (except to the extent
such conflict, breach, default or payment could not reasonably be expected to have a
Material Adverse Effect) or (iv) except for the Liens created under the First Lien
Collateral Documents and the Second Lien Collateral Documents, result in or require the
creation or imposition of any Lien upon or with respect to any of the Properties of any Loan
Party or any of its Subsidiaries. As of the Effective Date, no Loan Party is in violation
of any such law, rule, regulation, order, writ,



79









 







judgment, injunction, decree, determination
or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the
violation or breach of which could be reasonably likely to have a Material Adverse
Effect.




     (e) Consents and Approvals. (i) No Governmental Authorization, and no notice
to, filing with, or consent or approval of any other third party is required for (A) the due
execution, delivery, recordation, filing or performance by any Loan Party of any Transaction
Document to which it is or is to be a party, or for the consummation of the Transaction, (B)
the grant by any Loan Party of the Liens granted by it pursuant to the First Lien Collateral
Documents, (C) the perfection or maintenance of the Liens created under the First Lien
Collateral Documents (including the first priority nature thereof) or (D) the exercise by
any Agent or any Lender Party of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to the First Lien Collateral Documents, except for (1)
those authorizations, approvals, actions, notices and filings set forth on Schedule
4.01(e), (I) all of which have been duly obtained, taken, given or made, (II) are in
full force and effect, (III) are free from conditions or requirements that have not been met
or complied with, (2) authorizations, approvals, actions, notices and filings required by
securities, regulatory or applicable law in connection with an exercise of remedies or (3)
those Governmental Authorizations, notices, filings with, or consents of, any other third
party, the failure of which to obtain and maintain could not reasonably be expected to
result in a Material Adverse Effect.




     (ii) No Governmental Authorization, and no notice to, filing with, or consent or
approval of any Governmental Authority or any other third party is required in
connection with the operation of the Projects in accordance with applicable law and
as otherwise contemplated by this Agreement, except for (A) the Governmental
Authorizations, notices and filings set forth on Schedule 4.01(e), (1) all
of which have been duly obtained, taken, given or made, (2) are in full force and
effect and (3) are free from conditions or requirements that have not been met or
complied with or (B) those Governmental Authorizations, notices, filings with or
consents of any other third party, the failure of which to obtain and maintain could
not reasonably be expected to result in a Material Adverse Effect.




     (f) Binding Agreement. This Agreement has been, and each other Transaction
Document when delivered hereunder will have been, duly executed and delivered by each Loan
Party thereto. This Agreement is, and each other Transaction Document when delivered
hereunder will be, the legal, valid and binding obligation of each Loan Party thereto,
enforceable against such Loan Party in accordance with its terms.




     (g) Litigation. Except as set forth on Schedule 4.01(g), there is no
action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its
Subsidiaries, including any Environmental Action, pending or threatened in writing before
any



80









 







Governmental Authority or arbitrator that (i) could reasonably be likely to have a
Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability
of any Loan Document or the consummation of the Transaction.




     (h) Financial Statements. (i) The Consolidated balance sheet of the Borrower
and its Subsidiaries as of December 31, 2005, the related Consolidated statement of income
and Consolidated statement of cash flows of the Borrower and its Subsidiaries for the Fiscal
Year then ended and the Consolidated balance sheet of the Borrower and its Subsidiaries as
at September 30, 2006, and the related Consolidated statement of income and Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the nine months then ended,
duly certified by the senior financial officer of the Borrower, copies of which have been
furnished to the Administrative Agent pursuant to Section 3.01, fairly present in
all material respects, subject, in the case of said balance sheet as at September 30, 2006,
and said statements of income and cash flows for the nine months then ended, to year end
audit adjustments, the Consolidated financial condition of the Borrower and its Subsidiaries
as at such dates and the Consolidated results of operations of the Borrower and its
Subsidiaries for the periods ended on such dates, all in accordance with GAAP applied on a
consistent basis.




     (ii) The Consolidated pro forma balance sheet of the Borrower and its
Subsidiaries as at September 30, 2006, and the related Consolidated pro forma
statement of income of the Borrower and its Subsidiaries for the twelve-month period
then ended, respectively, certified by the senior financial officer of the Borrower,
copies of which have been furnished to the Administrative Agent pursuant to
Section 3.01, fairly present in all material respects the Consolidated pro
forma financial condition of the Borrower and its Subsidiaries as at such dates and
the Consolidated pro forma results of operations of the Borrower and its
Subsidiaries for the period ended on such date giving effect to the Transaction, all
in accordance with GAAP.




     (iii) The Consolidated forecasted balance sheet, statement of income and
statement of cash flows of EBG Holdings and its Subsidiaries delivered to the
Administrative Agent, pursuant to Section 3.01(a)(xiii) and the Budget
required by Section 5.03(d) were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were reasonable at the time of
delivery of such forecasts, and represented, at the time of delivery, the Borrower’s
reasonable best estimate of its future financial performance.




     (i) Accuracy of Information; Projections. All information (other than the
information delivered pursuant to Section 3.01(a)(xiii), other financial projections
and general economic information) heretofore or contemporaneously furnished to any Lender
Party by or on behalf of EBG Holdings or any Loan Party in connection with any Loan Document
or any transaction contemplated hereby (including the Transactions), taken together as a
whole with all other information with which such Lender Party has previously been furnished,
is complete and correct in all material respects, as of the date



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such information was
furnished and as of the Effective Date, and did not contain any untrue statement of a
material fact or omit to state any material fact necessary to make any information not
misleading in light of the circumstances under which furnished.




     (j) Margin Stock. The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Loan
or drawings under any Synthetic Letter of Credit will be used to purchase or carry any
Margin Stock or to extend credit to others for the purpose of purchasing or carrying any
Margin Stock.




     (k) Investment Company Act. No Loan Party is an “investment company,” as
defined in or subject to regulations under the Investment Company Act of 1940, as amended.




     (l) Security Interest. All filings and other actions necessary to perfect and
protect the security interest in the Collateral created under the First Lien Collateral
Documents have been duly made or taken and are in full force and effect, and the First Lien
Collateral Documents create in favor of the First Lien Collateral Agent for the benefit of
the First Lien Secured Parties a valid and, together with such filings and other actions,
perfected first priority security interest in the Collateral, securing the payment of the
First Lien Obligations. The Loan Parties are the legal and beneficial owners of the
Collateral free and clear of any Lien, except for the liens and security interests created
or permitted under the Loan Documents.




     (m) Solvency. After giving affect to the Transaction, the Borrower and its
Subsidiaries are, on a Consolidated basis, Solvent.




     (n) ERISA Etc. (i) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan that has had or is reasonably expected to have a Material
Adverse Effect.




     (ii) Neither any Loan Party nor any ERISA Affiliate has incurred or is
reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan
except for Withdrawal Liability that could not reasonably be expected to have a
Material Adverse Effect.




     (iii) Neither any Loan Party nor any ERISA Affiliate has been notified by the
sponsor of a material Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of ERISA, and
no such Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA.




     (o) Environmental Matters. (i) Except as otherwise set forth on Part I of
Schedule 4.01(o) hereto, the operations and properties of each Loan Party and each
of its Subsidiaries comply with all applicable Environmental Laws and Environmental Permits,
all past non-compliance with such Environmental Laws and Environmental Permits has



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been
resolved without ongoing obligations or costs, except for any such non-compliance,
obligation or cost that could not reasonably be likely to have a Material Adverse Effect
and, to the best knowledge of each Loan Party, no circumstances exist that could (A) form
the basis of an Environmental Action against any Loan Party or any of its
Subsidiaries or any of their properties that could reasonably be likely to have a
Material Adverse Effect or (B) cause any such property to be subject to any restrictions on
ownership or transferability, or subject to any material Lien, under any Environmental Law.




     (ii) Except as otherwise set forth on Part II of Schedule 4.01(o)
hereto, none of the properties currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries is currently listed or proposed for listing on the
NPL or on the CERCLIS or any analogous state or local list; there are no and never
have been any underground or aboveground storage tanks or any surface impoundments,
septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have
been treated, stored or disposed on any property currently owned or operated by any
Loan Party or any of its Subsidiaries except where such treatment, storage or
disposal could not reasonably be likely to have a Material Adverse Effect; there is
no asbestos or asbestos-containing material on any property currently owned or
operated by any Loan Party or any of its Subsidiaries that requires abatement under
any applicable Environmental Law that could reasonably be likely to have a Material
Adverse Effect; and Hazardous Materials have not been released, discharged or
disposed of on any property currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries in a manner that would reasonably be expected to
require any investigation, cleanup, remediation or remedial action by any Loan Party
under any applicable Environmental Law that could reasonably be likely to have a
Material Adverse Effect.




     (iii) Except as otherwise set forth on Part III of Schedule 4.01(o)
hereto, neither any Loan Party nor any of its Subsidiaries is undertaking, and has
not completed, either individually or together with other potentially responsible
parties, any investigation or assessment or remedial or response action relating to
any actual or threatened release, discharge or disposal of Hazardous Materials at
any site, location or operation, either voluntarily or pursuant to the order of any
governmental or regulatory authority or the requirements of any Environmental Law;
and all Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned or operated by any
Loan Party or any of its Subsidiaries have been disposed of in a manner not
reasonably expected to result in liability to any Loan Party or any of its
Subsidiaries, except, in each case above, where any such investigation or assessment
or remedial or response action or liability could not reasonably be likely to have a
Material Adverse Effect.



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     (p) Tax Matters. (i) Neither any Loan Party nor any of its Subsidiaries is
party to any tax sharing agreement.




     (ii) Each Loan Party and each of its Subsidiaries has filed, has caused to be
filed or has been included in all tax returns (Federal, state, local and foreign)
required to be filed, other than those tax returns where the failure to file
such returns could not be reasonably expected to have a Material Adverse Effect, and
has paid all taxes shown thereon to be due, together with applicable interest and
penalties (other than taxes contested in good faith).




     (iii) No issues have been raised by the Internal Revenue Service in respect of
federal income tax returns for years for which the expiration of the applicable
statute of limitations has not occurred by reason of extension or otherwise that, in
the aggregate, could be reasonably likely to have a Material Adverse Effect.




     (iv) No issues have been raised by any state, local or foreign taxing
authorities, in respect of the returns for years for which the expiration of the
applicable statute of limitations has not occurred by reason of extension or
otherwise, that, in the aggregate, could be reasonably likely to have a Material
Adverse Effect.




     (q) Surviving Debt. Set forth on Schedule 4.01(q) hereto is a complete
and accurate list of all Surviving Debt, showing the obligor and the principal amount
outstanding thereunder and the maturity date thereof.




     (r) Owned Real Property. Set forth on Schedule 4.01(r) hereto is a
complete and accurate list of all material real property owned by any Loan Party, showing as
of the date hereof the street address, county or other relevant jurisdiction, state and
record owner thereof. Each Loan Party has good and marketable fee simple title to such real
property, free and clear of all Liens, other than Permitted Liens.




     (s) Leased Real Property. Set forth on Schedule 4.01(s) hereto is a
complete and accurate list of all material leases of real property under which any Loan
Party is the lessee, showing as of the date hereof the street address, county or other
relevant jurisdiction, state, lessor and lessee thereof. Each such lease is the legal,
valid and binding obligation of the parties thereto, enforceable in accordance with its
terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency
or similar laws affecting the enforcement of rights of creditors generally and except to the
extent that enforcement of rights and remedies set forth therein may be limited by equitable
principles (regardless of whether enforcement is considered in a court of law or a
proceeding in equity).




     (t) Material Contracts. Except as set forth on Schedule 4.01(t), each
Material Contract (i) has been duly authorized, executed and delivered by all parties
thereto, has not been amended or otherwise modified from the form previously delivered to
the



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Administrative Agent, except in accordance with the terms of this Agreement, (ii) is in
full force and effect and is binding upon and enforceable against all parties thereto in
accordance with its terms, except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of rights of creditors
generally and except to the extent that enforcement of rights and remedies set
forth therein may be limited by equitable principles (regardless of whether enforcement
is considered in a court of law or a proceeding in equity), and (iii) to the best knowledge
of the relevant Loan Party, there exists no material default under any Material Contract by
any party thereto.




     (u) Accounts. Neither the Borrower nor any of its Subsidiaries has any deposit
or securities accounts other than the Accounts or Local Accounts otherwise permitted under
the terms of this Agreement.




     (v) Regulatory Status. Each Project Company: (i) meets the requirements for,
and has made the necessary filing with, or has been determined by, FERC to be an exempt
wholesale generator (“EWG”) within the meaning of Section 1262(6) of the Public Utility
Holding Company Act of 2005 (“PUHCA”); (ii) is authorized by FERC pursuant to Section 205 of
the FPA to sell electric power, including energy and capacity, at market-based rates; and
(iii) is authorized by FERC to issue securities and assume obligations or liabilities
pursuant to Section 204 of the FPA.




     (w) FERC Proceedings. There are no pending FERC proceedings in which the EWG
status, market-based rate authority or the FPA Section 204 authority of a Project Company is
subject to withdrawal, revocation or material modification other than FERC rulemakings of
general applicability, including, but not limited to, Market-Based Rates for Wholesale Sales
of Energy, Capacity and Ancillary Services by Public Utilities in Docket No. RM04-7-000.




     (x) Regulatory Approvals. Except for any FERC approvals required in connection
with the Lender Parties’ exercise of remedies under the Loan Documents, no approvals or
authorizations from FERC are required to be obtained by any Project Company, the Loan
Parties, the First Lien Collateral Agent or the Lender Parties with respect to the
Transaction.




     (y) Existing Regulatory Orders. The Borrower and each Project Company is in
full compliance in all material respects with the terms and conditions of all orders issued
by FERC under Section 203 of the FPA and obtained by the Borrower or any Project Company.




     (z) PUHCA. The Borrower is a “holding company” within the meaning of Section
1262(8) of PUHCA solely with respect to its ownership of one or more EWGs, and is not
subject to or is otherwise exempt from regulation under PUHCA except for regulation under
Section 1265 of PUHCA.



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     (aa) Material Adverse Effect. Except as disclosed in writing to the Lender
Parties, since the Effective Date, there has been no event or circumstance, either
individually or in the aggregate, that has had or could reasonably be expected to have a
Material Adverse Effect.




     (bb) Violation of Law. No Loan Party is in violation of any applicable law,
rule, regulation, order, writ, judgment, injunction, decree, determination or award binding
on it, the violation or breach of which could be reasonably likely to have a Material
Adverse Effect.



ARTICLE V




COVENANTS




          SECTION 5.01. Affirmative Covenants. Until a Repayment Event has occurred, the
Borrower and each Guarantor will:





     (a) Compliance with Laws, Etc. Comply with all applicable laws, rules,
regulations and orders binding on it, such compliance to include, without limitation,
compliance with ERISA and the Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970, other than any such non-compliance which could not
reasonably be expected to have a Material Adverse Effect.




     (b) Payment of Taxes, Etc. Pay and discharge before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law become a Lien
upon its property (unless, in the case of (i) and (ii), the failure to do so could not
reasonably be expected to have a Material Adverse Effect); provided, however, that no Loan
Party shall be required to pay or discharge any such tax, assessment, charge or claim that
is being contested in good faith and by proper proceedings and only to the extent that
adequate reserves are being maintained.




     (c) Compliance with Environmental Laws. Comply and, if applicable, take
commercially reasonable efforts to cause all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits
necessary for its operations and properties (except where such failure to obtain or renew
could not reasonably be expected to have a Material Adverse Effect); and conduct any
investigation, study, sampling and testing, cleanup, removal, remedial or other action in
response to any release, discharge or disposal of any Hazardous Materials from or at any of
its properties, to the extent required by, and in compliance with, all Environmental Laws
(other than any such failure to investigate, study, sample, test, cleanup, remove, remediate
or take such other action as could not reasonably be expected to have a Material Adverse
Effect); provided, however, that no Loan Party shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its



86









 







obligation to do so is
being contested in good faith and by proper proceedings and appropriate reserves are being
maintained in accordance with GAAP.




     (d) Maintenance of Insurance. Maintain insurance in accordance with
Schedule 5.01(d).




     (e) Preservation of Existence, Etc. Preserve and maintain its existence as a
limited liability company or corporation, as applicable, and its good standing in the State
of Delaware; provided, however, that any Loan Party may consummate any merger or
consolidation permitted under Section 5.02(d).




     (f) Visitation Rights. Upon reasonable notice, at any reasonable time and from
time to time, permit any of the Agents or any of the Lender Parties, or any agents or
representatives thereof, to examine and make copies of and abstracts from the records and
books of account of, and visit the properties of, any Loan Party, and to discuss the
affairs, finances and accounts of any Loan Party with any of their officers or directors and
with their independent certified public accountants; provided that (i) so long as no Default
shall have occurred and be continuing or (ii) the Borrower shall have consented thereto,
neither the Agents nor the Lender Parties shall be entitled to more than one visit to any
single Project in any Fiscal Year.




     (g) Keeping of Books. Keep proper books of record and account in accordance
with GAAP.




     (h) Maintenance of Properties, Etc. Maintain, preserve and protect (or cause
to be maintained, preserved or protected) all of its properties and equipment necessary in
the conduct of the business of the Projects in good working order and condition, ordinary
wear and tear excepted, and in accordance with Prudent Industry Practices.




     (i) [Reserved].




     (j) Covenant to Give Security. Upon the acquisition or lease of any property
by any Loan Party with a fair market value in excess of $25,000,000, and such property, in
the reasonable judgment of the Administrative Agent or the First Lien Collateral Agent,
shall not already be subject to a perfected first priority security interest in favor of the
First Lien Collateral Agent for the benefit of the First Lien Secured Parties, then in each
case at the Borrower’s expense:




     (i) no later than 10 Business Days after such acquisition, furnish to the
Administrative Agent and the First Lien Collateral Agent a description of the real
and personal properties so acquired, in each case in detail reasonably satisfactory
to the Administrative Agent; and




     (ii) promptly, but in any event within 90 days after such acquisition, take all
such actions and execute and deliver, or cause to be executed and delivered, all
such mortgages, title insurance, surveys, certificates of occupancy,



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estoppel and
consent agreements of lessors, documents, instruments, agreements, opinions and
certificates with respect to such Property as the Administrative Agent shall
reasonably request to create (and provide evidence thereof) a valid and perfected
first priority Lien on such Property in favor of the First Lien Collateral Agent
(for the benefit of the First Lien Secured Parties), subject to Permitted Liens.




     (k) Further Assurances. (i) Upon the formation of any Subsidiary permitted
pursuant to Section 5.02(k) or (ii) promptly upon reasonable request by any Agent,
or any Lender Party through the Administrative Agent, do, execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register any and all such further acts,
deeds, conveyances, pledge agreements, mortgages, estoppel and consent agreements of
lessors, deeds of trust, trust deeds, assignments, financing statements and continuations
thereof, termination statements, notices of assignment, transfers, certificates, assurances
and other instruments as any Agent, or any Lender Party through the Administrative Agent,
may reasonably require from time to time in order to (i) carry out more effectively the
purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law,
subject any Loan Party’s or any such Subsidiary’s properties, assets, rights or interests to
the Liens now or hereafter intended to be covered by any of the First Lien Collateral
Documents, (iii) cause each such Subsidiary to become a Guarantor hereunder by executing a
Joinder Agreement and to pledge all of its assets under the First Lien Security Agreement or
a security agreement substantially similar thereto to the First Lien Collateral Agent for
the benefit of the First Lien Secured Parties (together with any opinions of counsel
reasonably requested by any Agent) and (iv) perfect and maintain the validity, effectiveness
and priority of any of the First Lien Collateral Documents and any of the Liens intended to
be created thereunder.




     (l) Accounts. (i) Establish (unless already established) and maintain at all
times in accordance with the Security Deposit Agreement, the Accounts, (ii) cause all
Revenues (as defined in the Security Deposit Agreement) and other amounts payable to it
(except for interest earned on deposits in the Local Accounts, if any, which shall be
credited to such Local Account) to be deposited into, or credited to, the Accounts, in
accordance with the terms of the Security Deposit Agreement and (iii) cause all funds (to
the extent permitted by the Security Deposit Account) deposited in the Accounts to be
applied and disbursed in accordance with the terms of the Security Deposit Agreement.




     (m) Interest Rate Hedging. Enter into prior to the date that is 75 days
following the Effective Date, and maintain for a period of no less than three and one-half
years, interest rate Hedge Agreements with Hedge Banks covering a notional amount of not
less than 50% of the sum of the outstanding principal amount of the Term B Loans and
providing for such Persons to make payments thereunder for a period of no less than three
and one-half years.




     (n) Maintenance of Credit Ratings. Use all commercially reasonable efforts to
maintain ratings on the Facilities from each of Moody’s and S&P for so long as such



88









 







rating agency is in the business of rating loans and securities of a type similar to the Facilities
(it being acknowledged and agreed that the Borrower shall not be required to maintain any
minimum credit rating).




     (o) Consents. The Borrower will use commercially reasonable efforts to
promptly obtain the consents referred to in Section 5.03(f)(ii)(B).




     (p) Separateness. Comply with the following:




     (i) Each of the Borrower and its Subsidiaries will act solely in its name and
through its duly authorized officers, managers, representatives or agents in the
conduct of its businesses;




     (ii) Each of the Borrower and its Subsidiaries will conduct in all material
respects its business solely in its own name, in a manner not misleading to other
Persons as to its identity (without limiting the generality of the foregoing, all
oral and written communications (if any), including invoices, purchase orders, and
contracts);




     (iii) Each of the Borrower and its Subsidiaries will obtain proper
authorization from member(s), shareholder(s), director(s) and manager(s), as
required by its limited liability company agreement or bylaws for all of its limited
liability company or corporate actions; and




     (iv) Each of the Borrower and its Subsidiaries will comply in all material
respects with the terms of its certificate of incorporation or formation and by-laws
or limited liability company agreement (or similar constituent documents).




     (q) Maintenance of Regulatory Status. The Project Companies shall maintain EWG
status, market-based rate authority under FPA Section 205, FPA Section 204 blanket
authorization and compliance with previously issued FPA Section 203 orders applicable to the
Borrower or Project Company, except in the event that such authorizations become no longer
available, or to the extent such authorizations are limited or restored as a result of
FERC’s rulemakings of general applicability including, but not limited to, Market-Based
Rates for Wholesale Sales of Energy, Capacity and Ancillary Services by Public Utilities
in Docket No. RM04-7-000.




     (r) Certain Collateral Matters. Use commercially reasonable efforts to obtain
consents necessary for the granting of any Lien on Property constituting Excluded Property
pursuant to clause (a) of the definition thereof.




     (s) Commodity Hedging. Enter into prior to the date that is twelve (12) months
following the Effective Date, and maintain at all times for the term referred to below,
Eligible Permitted Commodity Hedge and Power Sale Agreements covering capacity payments
and/or premiums to be received by the Borrower for an additional 600



89









 







to 800 megawatts of
capacity for a term of three to five years in the form of a heat rate tolling option or of a
similar product or set of products and otherwise reasonably acceptable to the Administrative
Agent; provided that any Eligible Permitted Commodity Hedge and Power Sale Agreement that is
in form and substance substantially similar to the Initial Commodity Hedge and Power Sale
Agreement (with such modifications thereto as are necessary or desirable to reflect the
modified term and modified capacity requirements stated herein) shall be acceptable for
purposes hereof.



          SECTION 5.02. Negative Covenants. Until a Repayment Event has occurred, neither the
Borrower nor any Guarantor will, at any time:





     (a) Liens, Etc. Create, incur, assume or suffer to exist any Lien on or with
respect to any of its properties of any character (including, without limitation, accounts)
whether now owned or hereafter acquired or assign any accounts or other right to receive
income, except:




     (i) Liens created under the First Lien Collateral Documents; provided that (i)
such Liens only secure (A) Debt permitted under Section 5.02(b)(i), (B)
obligations under Eligible Permitted Commodity Hedge and Power Sale Agreements
(including, without limitation, the Eligible Permitted Commodity Hedge and Power
Sale Agreement required pursuant to Section 5.01(s)) and (C) obligations
under Secured Hedge Agreements, (ii) such Liens are subject to the terms of the
Intercreditor Agreement and (iii) any Commodity Hedge Counterparty party to any such
Eligible Permitted Commodity Hedge and Power Sale Agreement or any Hedge Bank party
to any such Secured Hedge Agreement shall have become a party to the Intercreditor
Agreement as, and shall have the obligations of, a First Lien Secured Party
thereunder;




     (ii) Liens created under the Second Lien Collateral Documents; provided that
(i) such Liens only secure Debt permitted under Section 5.02(b)(ii), (ii)
such Liens are subject to the terms of the Intercreditor Agreement and (iii) any
lender (or any agent or trustee thereof) with respect to such Debt shall have become
a party to the Intercreditor Agreement as, and shall have the obligations of a
Second Lien Secured Party thereunder;




     (iii) Permitted Liens;




     (iv) Liens existing on the date hereof and described on Schedule
5.02(a) hereto;




     (v) purchase money Liens upon or in real property or equipment acquired or held
by the Borrower or any of its Subsidiaries in the ordinary course of business to
secure the purchase price of such property or equipment or to secure Debt incurred
solely for the purpose of financing or refinancing the acquisition of any such
property or equipment to be subject to such Liens, or Liens existing on any such
property or equipment at the time of acquisition (other



90









 







than any such Liens created
in contemplation of such acquisition that do not secure the purchase price), or
extensions, renewals or replacements of any of the foregoing for the same or a
lesser amount; provided, however, that no such Lien shall extend to or cover any
property other than the property or equipment being acquired, and no such extension,
renewal or replacement shall extend to or cover any property not theretofore subject
to the Lien being extended, renewed or replaced; and provided further that the
aggregate principal amount of the Debt
secured by Liens permitted by this clause (v) shall not exceed the
amount permitted under Section 5.02(b)(iv) at any time outstanding;




     (vi) Liens arising by virtue of any statutory or common law provision relating
to banker’s liens, rights of set-off or similar rights;




     (vii) Liens arising from precautionary Uniform Commercial Code financing
statements regarding, and any interest or title of a licensor, lessor or sublessor
under, any operating lease;




     (viii) pledges or deposits of Cash or Cash Equivalents securing deductibles,
self-insurance, co-payment, co-insurance, retentions or similar obligations to
providers of property, casualty or liability insurance in the ordinary course of
business;




     (ix) Liens arising under Capitalized Leases permitted under Section
5.02(b)(viii); provided that no such Lien shall extend to or cover any
Collateral or assets other than the property subject to such Capitalized Leases;




     (x) Liens securing Debt permitted under Section 5.02(b)(iii); and




     (xi) any other Liens securing Debt in aggregate amount not to exceed at any
time $5,000,000.



          (b) Debt. Create, incur, assume or suffer to exist any Debt, except:





     (i) Debt under the Loan Documents;




     (ii) Debt under the Second Lien Loan Documents in an aggregate principal amount
not to exceed $350,000,000;




     (iii) Debt incurred solely to finance Permitted Developments not to exceed in
the aggregate, when taken together with any equity proceeds referred to in
Section 5.02(f)(viii)(A), $140,000,000;




     (iv) Debt secured by Liens permitted by Section 5.02(a)(v) not to
exceed in the aggregate $25,000,000 at any time outstanding;



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     (v) to the extent constituting Debt, (A) payment obligations under Secured
Hedge Agreements and (B) obligations under the Borrower’s fuel oil inventory
financing program relating to (x) Mystic I, not to exceed in the aggregate at any
time 750,000 bbls and (y) Fore River, not to exceed in the aggregate at any time
700,000 bbls;




     (vi) to the extent permitted under Section 5.02(l) and constituting
Debt, obligations under any (A) Permitted Commodity Hedge and Power Sale
Agreements and (B) other Commodity Hedge and Power Sale Agreements with net
exposure thereunder not to exceed in the aggregate at any time $100,000,000;




     (vii) Debt owed to any Loan Party, which Debt shall (x) constitute Pledged
Debt, (y) be subordinated pursuant to the Terms of Subordination and (z) be
otherwise permitted under Section 5.02(f);




     (viii) Capitalized Leases not to exceed in the aggregate $20,000,000 for Fore
River, $40,000,000 for Mystic Development and $15,000,000 for Mystic I, in each
case, at any time outstanding;




     (ix) to the extent constituting Debt, Debt in respect of performance bonds, bid
bonds, appeal bonds, surety bonds, completion guarantees, indemnification
obligations, obligations to pay insurance premiums, take or pay obligations and
similar obligations incurred in the ordinary course of business and not in
connection with Debt for Borrowed Money;




     (x) other unsecured Debt of the Loan Parties issued in settlement of delinquent
obligation of the Loan Parties or disputes between the Loan Parties and other
Persons under Contractual Obligations of the Loan Parties (other than in respect of
Debt);




     (xi) Guaranteed Debt of any Loan Party in respect of any Debt otherwise
permitted to be incurred under this Section 5.02(b);




     (xii) endorsements of negotiable instruments for collection;




     (xiii) (without duplication) Surviving Debt; and




     (xiv) other unsecured Debt of the Loan Parties in an aggregate amount not to
exceed $50,000,000 at any time outstanding.




     (c) Change in Nature of Business. Make any material change in the nature of
its business as carried on at the date hereof and activities reasonably incidental thereto
or in connection with any Permitted Development.




     (d) Mergers, Etc. Merge into or consolidate with any Person or permit any
Person to merge into it; provided that any Subsidiary of the Borrower may merge into or



92









 







consolidate with any other Subsidiary of the Borrower; provided that, in the case of any
such merger or consolidation, the Person formed by such merger or consolidation shall be a
wholly owned Subsidiary of the Borrower; provided that the Person formed by such merger or
consolidation obtains prior approval under Section 204 of the FPA to the extent required;
and provided further that, in the case of any such merger or consolidation to which a
Guarantor is a party, the Person formed by such merger or consolidation shall be a
Guarantor.




     (e) Sales of Assets, Etc. Sell, lease, transfer or otherwise dispose of any
assets, or grant any option or other right to purchase, lease or otherwise acquire any
assets, except:




     (i) sales of (or the granting of any option or other right to purchase, lease
or otherwise acquire) power, natural gas, fuel, capacity, gas or fuel
transportation, power transportation or ancillary services or other inventory in the
ordinary course of such Person’s business including, without limitation, Permitted
Trading Activities;




     (ii) sales, transfers or other dispositions in the ordinary course of its
business of Property that is surplus (including, without limitation, surplus land
and emission credits not required for the continued operation of any Project in any
given year), obsolete, defective, worn-out, damaged, rendered unfit for normal use
or property that is being exchanged for similar property, or that individually or in
the aggregate is not essential for the continued operation of any Project;




     (iii) the liquidation, sale or use of Cash and Cash Equivalents;




     (iv) sales, transfers or other dispositions of assets among Loan Parties;




     (v) sales or discounts without recourse of accounts receivable arising in the
ordinary course of such Person’s business in connection with the compromise or
collection thereof;




     (vi) dispositions required or contemplated by the Contractual Obligations in
existence as of the date hereof with or relating to Governmental Authorities and
relating to the Guarantors; and




     (vii) sales of Property by the Borrower or any Guarantor so long as (A) the
purchase price paid to the Borrower or such Guarantor for such Property shall be no
less than the fair market value of such Property at the time of such sale, (B) at
least 75% of the consideration to be received is paid in cash or Cash Equivalents
and such remaining 25% is not a debt instrument of the Borrower or any of its
Affiliates (provided that for purposes of this subclause (B), (I) any
amounts deposited into an escrow or other type of holdback account and any
consideration in the form of readily marketable securities shall be deemed to be
cash, (II) customary purchase price adjustments may be settled on a non-cash



93









 







basis
and (III) the assumption of Debt relating to the asset being disposed shall be
disregarded for the purposes of this provision); and (C) the aggregate purchase
price paid to the Borrower and all of the Guarantors for such Property and all other
Property sold by the Borrower and the Guarantors (1) during the same Fiscal Year
pursuant to this clause (vii) shall not exceed $25,000,000 and (2) since the
Effective Date shall not exceed $125,000,000.




Events of Eminent Domain or Casualty Events (as such terms are defined in the Security
Deposit Agreement) do not qualify as sales, leases, transfers or other dispositions of
Property for purposes of this Section 5.02(e).




     (f) Investments in Other Persons. Make or hold any Investment in any Person,
except:




     (i) Investments by and among Loan Parties in other Loan Parties;




     (ii) Investments by the Loan Parties in Cash Equivalents;




     (iii) to the extent constituting Investments, Investments in contracts and
agreements (including, without limitation, (A) Permitted Commodity Hedge and Power
Sale Agreements, (B) interest rate Hedge Agreements and (C) other Commodity Hedge
and Power Sale Agreements with net exposure thereunder not to exceed in the
aggregate $100,000,000 at any time, when taken together with any net exposure
referred to in Section 5.02(b)(vi)(B)), including prepaid deposits and
expenses thereunder, to the extent permitted under the Loan Documents;




     (iv) Investments received in connection with the bankruptcy or reorganization
of suppliers or customers and in settlement of delinquent obligations of, and other
disputes with, customers arising in the ordinary course of business;




     (v) Investments in the Accounts and the Local Accounts and Investments of the
funds on deposit therein, in each case, as otherwise permitted under the Loan
Documents;




     (vi) loans and advances to officers, directors and employees of any Loan Party
for reasonable and customary business related travel expenses, moving expenses and
similar expenses incurred in the ordinary course of business of such Loan Party in
an aggregate principal amount at any time outstanding not exceeding $1,000,000;




     (vii) to the extent constituting Investments, Debt which is permitted under
Section 5.02(b);




     (viii) Investments by the Borrower or any Guarantor in Permitted Developments
made solely with the proceeds (not to exceed, in the aggregate,



94










 






$140,000,000) of (A)
of capital contributions (or sales of equity securities of EBG Holdings) received
directly or indirectly from EBG Holdings and (B) any Debt permitted to be incurred
pursuant to Sections 5.02(b)(ix); and




     (ix) Investments in Permitted Developments by the Borrower or any Guarantor
after the Effective Date in an aggregate amount not to exceed $10,000,000; and




     (x) any other Investments in an aggregate amount not to exceed $5,000,000 at
any time.




     (g) Restricted Payments. Declare or pay any dividends, purchase, redeem,
retire, defease or otherwise acquire for value any of its Equity Interests now or hereafter
outstanding, return any capital to its stockholders, partners or members (or the equivalent
Persons thereof) as such, make any distribution of assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the equivalent Persons thereof) as
such, or permit any of its Subsidiaries to do any of the foregoing, or permit any of its
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value any Equity
Interests in the Borrower, except that any Subsidiary of the Borrower may (A) declare and
pay cash dividends to the Borrower or to any Loan Party of which it is a Subsidiary and (B)
accept capital contributions from its parent to the extent permitted under Section
5.02(f); provided that the Borrower shall be able to pay EBG Holdings Tax Liabilities,
EBG Holdings O&M Costs, the Distribution and the Tender Offer, in each case, in accordance
with the Closing Date Flow of Funds Memo or the Security Deposit Agreement.




     (h) Amendments of Constitutive Documents. Amend its limited liability company
agreement, bylaws or other constitutive documents other than amendments that could not be
reasonably expected to have a Material Adverse Effect.




     (i) Accounting Changes. Make or permit, or permit any of its Subsidiaries to
make or permit, any change in (i) accounting policies or reporting practices, except as
permitted by GAAP, or (ii) Fiscal Year.




     (j) Prepayments, Etc., of Debt. Prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make any payment in
violation of any subordination terms of, any Debt other than the intercompany Debt among the
Loan Parties that is expressly subordinated to the Obligations hereunder, or that is secured
and the Liens securing such Debt rank behind the Liens created by the First Lien Collateral
Documents, or permit any of its Subsidiaries to do any of the foregoing, in each case,
except to the extent permitted by the Loan Documents.




     (k) Partnerships; Formation of Subsidiaries, Etc. (i) Become a general partner
in any general or limited partnership or joint venture, or permit any of its Subsidiaries to
do so or (ii) organize any new Subsidiary (other than (x) a Permitted Development Subsidiary
organized in connection with a Permitted Development or (y) a Subsidiary



95









 







formed for the
purpose of conducting Permitted Trading Activities, in each case, in compliance with
Section 5.01(k)).




     (l) Speculative Transactions and Permitted Commodity Hedge and Power Sale
Agreements. Engage, or permit any of its Subsidiaries to engage, in any Commodity Hedge
and Power Sale Agreements or any similar transactions entered into solely for speculative
purposes (it being acknowledged and agreed that the Initial Commodity Hedge and Power Sale
Agreements, the Eligible Permitted Commodity Hedge and Power
Sale Agreements required pursuant to Section 5.01(s) and any other Eligible
Permitted Commodity Hedge and Power Sale Agreements or any other Permitted Trading Activity
(other than an Excess Duration Transaction) shall be deemed to be in compliance with this
Section 5.02(l)).


For purposes of this Section 5.02(l), “Excess Duration Transaction” means any Commodity
Hedge and Power Sale Agreements or any similar transactions (A) that, when taken together on a net
basis with all other such agreements outstanding (other than the RMR Agreement) for any period,
would cause the aggregate amount of contracted capacity to be provided (whether financially or
physically) by the Loan Parties pursuant to such agreements for such period to exceed an amount
equal to the projected available capacity of all of the Projects for such period; provided that, if
the Permitted Development is not subject to the independent system operator to which the other
Projects are subject, the projected available capacity related to the Permitted Development shall
not be taken together with the projected available capacity of the other Projects but shall be
treated as separate contracted capacity or (B) other than any Eligible Permitted Commodity Hedge
and Power Sale Agreements, have a stated maturity in excess of 14 months from the date such
agreement is entered into.





     (m) Capital Expenditures. Make any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by the Loan Parties to exceed, in any Fiscal
Year, the Adjusted Capex Limit. During any Fiscal Year, Capital Expenditures shall be
deemed to be made first from Carryover Amounts for such Fiscal Year, second from the Base
Capex Allowance for such Fiscal Year and third from any Pullback Amount for such Fiscal
Year.




     (n) Amendment, Etc., of Material Contracts. Cancel or terminate any Material
Contract or consent to or accept any cancellation or termination thereof, amend or otherwise
modify any Material Contract or give any consent, waiver or approval thereunder, waive any
default under or breach of any Material Contract, or agree in any manner to any other
amendment, modification or change of any term or condition of any Material Contract, except
as could not reasonably be expected to have a Material Adverse Effect; provided that no such
cancellation, termination, amendment, modification, change, agreement, waiver, approval or
consent shall be a Default hereunder if such Loan Party enters into a Replacement Material
Contract within 60 days thereafter; provided further that, if a Responsible Officer of the
Borrower certifies to the satisfaction of the Administrative Agent that the Borrower or any
Loan Party is diligently pursuing such Replacement Material Contract and that such
Replacement Material Contract is



96









 







reasonably likely to be entered into within the next 60
days, then such 60-day period shall be extended for an additional 60 days; provided further
that notwithstanding the foregoing, the Borrower and Mystic Development shall be permitted
to terminate and release the Distrigas Guaranty and/or the Cabot Guaranty in connection with
the settlement of the Distrigas Litigation.




     (o) Regulatory Matters. Make or permit to be made any change in the upstream
ownership of a Guarantor without first obtaining any necessary authorization under Section
203 of the FPA.




     (p) Transactions with Affiliates. Enter into or cause or permit to exist any
arrangement, transaction or contract (including for the purchase, lease or exchange of
property or the rendering of services) with any of its other Affiliates, unless such
arrangement, transaction or contract is:




     (i) (A) on fair and reasonable terms no less favorable to such Loan Party than
it could obtain in an arm’s-length transaction with a Person that is not an
Affiliate and (B) of the kind which would be entered into by a prudent Person in the
position of such Loan Party with a Person that is not one of its Affiliates;




     (ii) an arrangement, transaction or contract expressly permitted by the terms
of this Agreement;




     (iii) the payment of fees and indemnities to directors, officers, consultants
and employees of the Loan Parties in the ordinary course of business;




     (iv) pursuant to the Management and Operation Agreements, including the payment
of fees, costs and expenses as required thereunder (as of the date hereof);




     (v) (A) any employment or severance agreements or arrangements entered into by
the Loan Parties in the ordinary course of business, or (B) any employee
compensation, benefit plan or arrangement, any health, disability or similar
insurance plan which covers employees, and any reasonable employment contract or
arrangement and transactions pursuant thereto; or




     (vi) the payment of fees, expenses, bonuses and awards related to the
Transactions contemplated by the Transaction Documents and Loan Documents to the
extent, in the case of the Transaction Documents, written notice thereof has been
provided to the Administrative Agent prior to the Effective Date.




     (q) Maintenance of Accounts. Establish or maintain any account other than (i)
the Accounts established and maintained pursuant to the Security Deposit Agreement, (ii) the
Local Accounts and (iii) other accounts in existence on the Effective Date (provided that
the Borrower causes each such account to be closed and the funds on



97









 







deposit therein or
credited thereto at the time of such closure to be transferred to the Revenue Account within
60 days after the Effective Date).



          SECTION 5.03. Reporting Requirements. Until a Repayment Event has occurred, the Borrower
will furnish to the Agents (who will then circulate to the Lenders):





     (a) Default Notice. As soon as possible and in any event within five days
after the Borrower obtains knowledge thereof, the occurrence of each Default or any event,
development or occurrence reasonably likely to have a Material Adverse Effect continuing on
the date of such statement, a statement of a Responsible Officer of the Borrower setting
forth details of such Default and the action that the Borrower has taken and proposes to
take with respect thereto.




     (b) Annual Financials. As soon as available and in any event within 120 days
after the end of each Fiscal Year (but, in the case of the 2006 Fiscal Year, 150 days after
the end of such Fiscal Year), a copy of the annual audit report for such year for the
Borrower and its Subsidiaries, including therein a Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such Fiscal Year and a Consolidated statement
of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries
for such Fiscal Year, in each case accompanied by (i) an opinion as to such audit report of
KPMG LLP or other independent public accountants of recognized standing acceptable to the
Administrative Agent and (ii) a certificate of the senior financial officer of the Borrower
(A) certifying such financial statements as having been prepared in accordance with GAAP,
(B) stating that no Default has occurred and is continuing or, if a Default has occurred and
is continuing, a statement as to the nature thereof and the action that the Borrower has
taken and proposes to take with respect thereto and (C) attaching a schedule in form
reasonably satisfactory to the Administrative Agent of the computations used by the Borrower
in determining, as of the end of such Fiscal Year, compliance with the covenants contained
in Section 5.04; provided that, in the event of any change in generally accepted
accounting principles used in the preparation of such financial statements, the Borrower
shall also provide a reconciliation of such financial statements to GAAP.




     (c) Quarterly Financials. As soon as available and in any event within 60 days
after the end of each of the first three quarters of each Fiscal Year, a Consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and a
Consolidated statement of income and a Consolidated statement of cash flows of the Borrower
and its Subsidiaries for the period commencing at the end of the previous Fiscal Quarter and
ending with the end of such Fiscal Quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end of such quarter,
setting forth in each case in comparative form the corresponding figures for the
corresponding date or period of the preceding Fiscal Year, all in reasonable detail and duly
certified (subject to normal year-end audit adjustments) by the senior financial officer of
the Borrower as having been prepared in



98









 







accordance with GAAP, together with (i) a
certificate of said officer stating that no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the nature thereof and the action
that the Borrower has taken and proposes to take with respect thereto and (ii) a schedule in
form satisfactory to the Administrative Agent of the computations used by the Borrower in
determining compliance with the covenants contained in Section 5.04; provided that,
in the event of any change in generally accepted accounting principles used
in the preparation of such financial statements, the Borrower shall also provide a
reconciliation of such financial statements to GAAP.




     (d) Annual Budget. As soon as available and in any event no later than 15 days
before the start of each Fiscal Year, an annual budget, prepared on a quarterly basis for
such Fiscal Year in substantially the form attached hereto as Exhibit I or in form
otherwise acceptable to the Administrative Agent (with respect to each such Fiscal Year, the
“Budget”), which Budget shall be certified by the senior financial officer of the Borrower
as having been prepared in good faith based upon assumptions believed by the Borrower to be
reasonable at the time made. The Borrower and the Guarantors shall use their best efforts
to comply in all material respects with each applicable Budget, subject to market
conditions.




     (e) Litigation. Promptly after the commencement thereof, notice of all
actions, suits, litigation and proceedings before any Governmental Authority of the type
described in Section 4.01(g).




     (f) Agreement Notices; Etc. (i) Promptly upon execution thereof, copies of
any Material Contract entered into by any Loan Party after the date hereof;




     (ii) (A) Promptly (but in any event within 10 days) following any Loan Party’s
entering into of any Material Contract after the date hereof, a Consent and
Agreement in respect of such Material Contract and (B) promptly following receipt by
the Borrower after the Effective Date, a Consent and Agreement with respect of each
Material Contract as of the Effective Date for which a Consent and Agreement was not
delivered pursuant to Section 3.01(a)(ii)(E); and




     (iii) Promptly upon execution thereof, copies of any amendment, modification or
waiver of any material provision of any Second Lien Loan Document or any Material
Contracts.




     (g) ERISA.




     (i) ERISA Events and ERISA Reports. (A) Promptly and in any event
within 10 Business Days after any Loan Party or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred that could reasonably be expected
to result in liability in excess of $10,000,000, a statement of a Responsible
Officer of the Borrower describing such ERISA Event and the action, if any, that
such Loan Party or such ERISA Affiliate has taken and proposes to



99









 







take with respect
thereto and (B) on the date any records, documents or other information must be
furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a
copy of such records, documents and information within 10 Business Days.




     (ii) Plan Terminations. Promptly and in any event within ten Business
Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies of
each notice from the PBGC stating its intention to terminate any Plan or to
have a trustee appointed to administer any Plan.




     (iii) Multiemployer Plan Notices. Promptly and in any event within ten
Business Days after receipt thereof by any Loan Party or any ERISA Affiliate from
the sponsor of a Multiemployer Plan, copies of each notice concerning (A) the
imposition of Withdrawal Liability that could reasonably be expected to result in
liability in excess of $10,000,000 by any such Multiemployer Plan, (B) the
reorganization or termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan that could reasonably be expected to result in liability in
excess of $10,000,000 or (C) the amount of liability incurred, or that may be
incurred, by such Loan Party or any ERISA Affiliate in connection with any event
described in clause (A) or (B).




     (h) Environmental Conditions. Promptly after the assertion or occurrence
thereof, notice of any Environmental Action against or of any noncompliance known to the
Borrower by any Loan Party or any of its Subsidiaries with any Environmental Law or
Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect
or (ii) cause any property described in the First Lien Mortgages to be subject to any
material restrictions on ownership or transferability, or subject to any material Lien,
under any Environmental Law.




     (i) Real Property. As soon as available and in any event within 30 days after
the end of each Fiscal Year, a report supplementing Schedules 4.01(r) and
4.01(s) hereto, including an identification of all material owned and leased real
property disposed of by the Borrower or any of its Subsidiaries during such Fiscal Year, a
list and description (including the street address, county or other relevant jurisdiction,
state, record owner, and, in the case of leases of property, lessor and lessee thereof) of
all material real property acquired or leased during such Fiscal Year and a description of
such other changes in the information included in such Schedules as may be reasonably
necessary for such Schedules to be accurate and complete.




     (j) Insurance. (i) Promptly after the Borrower gains knowledge of the
occurrence thereof, a report summarizing any changes in the insurance coverage of the
Borrower and its Subsidiaries resulting from a change in the insurance markets of the type
described in Section 2 of Schedule 5.01(d).




     (ii) Promptly after the occurrence thereof, notice of any Casualty Event or
Event of Eminent Domain affecting any Loan Party, whether or not



100









 







insured, through
fire, theft, other hazard, casualty involving a probable loss of $10,000,000 or
more.




     (iii) Promptly after receipt thereof, copies of any cancellation or receipt of
written notice of threatened cancellation of any property damage insurance required
to be maintained under Section 5.01(d).




     (k) Other Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or prospects of any
Loan Party or any of its Subsidiaries as any Agent, or any Lender Party through the
Administrative Agent, may from time to time reasonably request.



          SECTION 5.04. Financial Covenants. Until a Repayment Event has occurred, the Borrower
will:





     (a) Leverage Ratio. The Borrower shall not permit the Leverage Ratio as of the
last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending March 31, 2007, to
exceed the correlative ratio indicated:



	 	 	 
	Leverage Ratio
	Fiscal Quarter	 	Ratio
	Quarter 1 2007

	 	11.0x
	Quarter 2 2007

	 	11.0x
	Quarter 3 2007

	 	11.0x
	Quarter 4 2007

	 	11.0x
	Quarter 1 2008

	 	11.0x
	Quarter 2 2008

	 	11.0x
	Quarter 3 2008

	 	11.0x
	Quarter 4 2008

	 	11.0x
	Quarter 1 2009

	 	10.0x
	Quarter 2 2009

	 	10.0x
	Quarter 3 2009

	 	10.0x
	Quarter 4 2009

	 	10.0x
	Quarter 1 2010

	 	9.0x
	Quarter 2 2010

	 	9.0x
	Quarter 3 2010

	 	9.0x
	Quarter 4 2010

	 	9.0x






101









 






	 	 	 
	Leverage Ratio
	Fiscal Quarter	 	Ratio
	Quarter 1 2011

	 	8.0x
	Quarter 2 2011

	 	8.0x
	Quarter 3 2011

	 	8.0x
	Quarter 4 2011

	 	8.0x
	Quarter 1 2012

	 	7.0x
	Quarter 2 2012

	 	7.0x
	Quarter 3 2012

	 	7.0x
	Quarter 4 2012

	 	7.0x
	Quarter 1 2013

	 	6.0x
	Quarter 2 2013

	 	6.0x
	Quarter 3 2013

	 	6.0x
	Quarter 4 2013

	 	6.0x







     (b) Interest Coverage Ratio. The Borrower shall not permit the Interest
Coverage Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter
ending March 31, 2007, to be less than the correlative ratio indicated:



	 	 	 
	Interest Coverage Ratio
	Fiscal Quarter	 	Ratio
	Quarter 1 2007

	 	1.05x
	Quarter 2 2007

	 	1.05x
	Quarter 3 2007

	 	1.05x
	Quarter 4 2007

	 	1.05x
	Quarter 1 2008

	 	1.05x
	Quarter 2 2008

	 	1.05x
	Quarter 3 2008

	 	1.10x
	Quarter 4 2008

	 	1.10x
	Quarter 1 2009

	 	1.10x
	Quarter 2 2009

	 	1.10x






102









 






	 	 	 
	Interest Coverage Ratio
	Fiscal Quarter	 	Ratio
	Quarter 3 2009

	 	1.10x
	Quarter 4 2009

	 	1.10x
	Quarter 1 2010

	 	1.25x
	Quarter 2 2010

	 	1.25x
	Quarter 3 2010

	 	1.25x
	Quarter 4 2010

	 	1.25x
	Quarter 1 2011

	 	1.50x
	Quarter 2 2011

	 	1.50x
	Quarter 3 2011

	 	1.50x
	Quarter 4 2011

	 	1.50x
	Quarter 1 2012

	 	1.75x
	Quarter 2 2012

	 	1.75x
	Quarter 3 2012

	 	1.75x
	Quarter 4 2012

	 	1.75x
	Quarter 1 2013

	 	2.00x
	Quarter 2 2013

	 	2.00x
	Quarter 3 2013

	 	2.00x
	Quarter 4 2013

	 	2.00x







     (c) Right to Cure Financial Covenants. (i) Notwithstanding anything to the
contrary contained in Section 5.04(a) or (b), if the Loan Parties fail to
comply with the requirements of either covenant set forth in Section 5.04(a) or
(b) (the “Financial Covenants”), then until the 10th calendar day after
delivery of the related certificate pursuant to Section 5.03(b) or (c), the
Borrower shall have the right to receive cash contributions from EBG Holdings in an
aggregate amount equal to or greater than the amount that, if added to Consolidated Adjusted
EBITDA for the relevant Fiscal Quarter, would have been sufficient to cause compliance with
the Financial Covenants for such Fiscal Quarter (an “Equity Cure”).




     (ii) The Borrower shall give the Administrative Agent written notice (the “Cure
Notice”) of an Equity Cure on or before the day the Equity Cure is consummated. The
Borrower shall not be entitled to exercise the Equity Cure any more than one time in
any consecutive four Fiscal Quarters.



103









 






     (iii) Upon the delivery by the Borrower of a Cure Notice, no Event of Default or
Default shall be deemed to exist pursuant to the Financial Covenants (and any such
Default or Event of Default shall be retroactively considered not to have existed or
occurred). If the Equity Cure is not consummated within 10 days
after delivery of the related certificate pursuant to Section 5.03(b)
or (c), each such Default or Event of Default shall be deemed reinstated.




     (iv) The cash amount received by the Borrower pursuant to exercise of the
Equity Cure shall be added to Consolidated Adjusted EBITDA for the immediately
preceding Fiscal Quarter solely for purposes of recalculating compliance with the
Financial Covenants for such Fiscal Quarter and of calculating the Financial
Covenants for the periods that include such Fiscal Quarter.



ARTICLE VI




EVENTS OF DEFAULT




          SECTION 6.01. Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:





     (a) Payment Defaults. (i) the Borrower shall fail to pay any principal of any
Loan when the same shall become due and payable, (ii) the Borrower shall fail to pay any
interest on any Loan within three Business Days after the same shall become due and payable,
or (iii) any Loan Party shall fail to make any other payment under any Loan Document, in
each case under this clause (a) within ten Business Days after the same shall become
due and payable;




     (b) Misrepresentation. any representation or warranty made by any Loan Party
(or any of its officers) under or in connection with any Loan Document shall prove to have
been incorrect in any material respect when made; provided, however, that if (i) such Loan
Party was not aware that such representation or warranty was false or incorrect at the time
such representation or warranty was made, (ii) the fact, event or circumstance resulting in
such false or incorrect representation or warranty is capable of being cured, corrected or
otherwise remedied and (iii) such fact, event or circumstance resulting in such false or
incorrect representation or warranty shall have been cured, corrected or otherwise remedied,
within 30 days from the date on which the Borrower or any officer thereof first obtains
knowledge thereof such that such incorrect or false representation or warranty (as cured,
corrected or remedied) could not reasonably be expected to result in a Material Adverse
Effect, then such incorrect or false representation or warranty shall not constitute a
Default or Event of Default;




     (c) Certain Covenants. the Borrower shall fail to perform or observe any term,
covenant or agreement contained in (i) Sections 2.14, 5.01(e) and
(l), 5.02 (other than clauses (l) and (p) thereof),
5.03(a) or 5.04 or (ii) Sections 5.01(d), (m),
(p) and



104









 







(s) and 5.02(l) and (p) and such default under this
subclause (ii) shall continue unremedied for a period of ten (10) days after the earlier of
the date on which (x) any Responsible Officer of a Loan Party becomes aware of such failure
or (y) written notice thereof shall have been given to the Borrower by any Agent or any
Lender Party;




     (d) Other Covenants. any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for 30 days after the earlier of the date
on which (i) any Responsible Officer of a Loan Party becomes aware of such failure or (ii)
written notice thereof shall have been given to the Borrower by any Agent or any Lender
Party; provided, however, that (A) if such failure is not susceptible to being remedied
solely by the payment of money to any Person that is due after giving effect to any grace
provisions, dispute resolution provisions or similar provisions and is not susceptible to
cure within 30 days, (B) such Loan Party is proceeding with diligence and in good faith to
cure such default and such default is susceptible to cure and (C) the existence of such
failure could not reasonably be expected to have a Material Adverse Effect, such 30-day
period shall be extended as may be necessary to cure such failure, such extended period not
to exceed 90 days in the aggregate (inclusive of the original 30-day period);




     (e) Cross Default. any Loan Party or any of its Subsidiaries shall fail to pay
any principal of, premium or interest on or any other amount payable in respect of any Debt
of such Loan Party or such Subsidiary (as the case may be) that is outstanding in a
principal amount of at least $25,000,000 either individually or in the aggregate for all
such Loan Parties and Subsidiaries (but excluding Debt outstanding under this Agreement and
obligations under Hedge Agreements, Commodity Hedge and Power Sale Agreements and Debt
described in clause (b) of the definition of “Guaranteed Debt”), when the same
becomes due and payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace period, if
any, specified in the agreement or instrument relating to such Debt; or any other event
shall occur or condition shall exist under any agreement or instrument relating to any such
Debt and shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt or otherwise to cause, or to permit
the holder thereof to cause, such Debt to mature; or any such Debt shall be declared to be
due and payable or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case prior to the stated
maturity thereof;




     (f) Hedge Cross Default. any Loan Party shall default under any one or more
Hedge Agreements or Commodity Hedge and Power Sale Agreements on any required payment
obligation in excess of $25,000,000 individually or in the aggregate for all Loan Parties,
after giving effect to any grace periods, dispute resolution provisions or similar
provisions contained in such Hedge Agreement or Commodity Hedge and Power Sale



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Agreement (it
being acknowledged and agreed that any such Default shall be deemed to be cured for all
purposes under the Loan Documents if and when such Loan Party pays or causes the payment of
such defaulted amount);




     (g) Insolvency Event. any Loan Party or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Loan Party or any of its
Subsidiaries seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee or other similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding shall remain
undismissed or unstayed for a period of 60 days or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any of its Subsidiaries
shall take any corporate action to authorize any of the actions set forth above in this
subsection (g);




     (h) Judgments. any final judgments or orders, either individually or in the
aggregate, for the payment of money in excess of $25,000,000 shall be rendered against any
Loan Party or any of its Subsidiaries by one or more Governmental Authorities, arbitral
tribunals or other bodies having jurisdiction against such Loan Party which remains
unsatisfied and either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 60 consecutive days during
which a stay of such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect;




     (i) Non-Monetary Judgments. any non-monetary judgment or order shall be
rendered against any Loan Party or any of its Subsidiaries that could reasonably be expected
to have a Material Adverse Effect, and there shall be any period of 60 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect;




     (j) Invalidity. any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason (except as a result
of acts or omissions of the First Lien Secured Parties) cease to be valid and binding on or
enforceable against any Loan Party to it, or any such Loan Party shall so state in writing;




     (k) Collateral. any First Lien Collateral Document or financing statement
after delivery thereof pursuant to Section 3.01 or 5.01(j) shall for any
reason (other than pursuant to the terms thereof) cease to create a valid and perfected
first priority lien on and security interest in any material portion of the Collateral
purported to be covered thereby;



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     (l) Equity of Borrower. the failure of EBG Holdings to hold (directly or
indirectly) 100% of the Equity Interests of the Borrower and its Subsidiaries;



     (m) ERISA. (i) any ERISA Event shall have occurred with respect to a Plan and
the sum (determined as of the date of occurrence of such ERISA Event) of the Insufficiency
of such Plan and the Insufficiency of any and all other Plans with respect to which an ERISA
Event shall have occurred and then exist (or the liability of the Loan Parties and the ERISA
Affiliates related to such ERISA Event) could reasonably be expected to have a Material
Adverse Effect;




     (ii) any Loan Party or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with all other amounts
required to be paid to Multiemployer Plans by the Loan Parties and the ERISA
Affiliates as Withdrawal Liability (determined as of the date of such notification),
could reasonably be expected to have a Material Adverse Effect;




     (iii) any Loan Party or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or
is being terminated, within the meaning of Title IV of ERISA, and as a result of
such reorganization or termination the aggregate annual contributions of the Loan
Parties and the ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over the amounts
contributed to such Multiemployer Plans for the plan years of such Multiemployer
Plans immediately preceding the plan year in which such reorganization or
termination occurs by an amount that could reasonably be expected to have a Material
Adverse Effect;




     (n) Commodity Hedge and Power Sale Agreements. (i) any Commodity Hedge
Counterparty to any Initial Commodity Hedge and Power Sale Agreement or any Eligible
Permitted Commodity Hedge and Power Sale Agreement required pursuant to Section
5.01(s) shall fail to perform or observe any material term, covenant or agreement
contained in such Initial Commodity Hedge and Power Sale Agreement or any Eligible Permitted
Commodity Hedge and Power Sale Agreement required pursuant to Section 5.01(s) if
after each case, such failure shall remain unremedied for 30 days or (ii) any Initial
Commodity Hedge and Power Sale Agreement or any Eligible Permitted Commodity Hedge and Power
Sale Agreement required pursuant to Section 5.01(s) shall terminate on or before its
scheduled expiration date except upon fulfillment of each party’s obligations thereunder, or
shall be declared null and void or unenforceable by a Governmental Authority or a party
thereto anticipatorily repudiates its obligations thereunder, and in each such case of (i)
or (ii), the Loan Parties shall not have entered into a Replacement Commodity Hedge and
Power Sale Agreement within 60 days of the occurrence of any such event; or




     (o) Loss Proceeds. the occurrence of (i) a Casualty Event with respect to (A)
all or a material portion of the Property of any Project or (B) all or a material portion



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of
the Collateral or (ii) an Event of Eminent Domain with respect to (A) all or a material
portion of the Property of any Project or (B) all or a material portion of the Collateral,
unless in the case of each of clause (i) and (ii) the Borrower shall have received,
within 90 days after such occurrence, Insurance Proceeds or Eminent Domain Proceeds or cash
equity contributions from EBG Holdings in an amount sufficient to repair or rebuild such
Project or Collateral, as the case may be;


then, and in any such event, the Administrative Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Commitments of each Lender
Party and the obligation of each Lender Party to make Loans (other than Synthetic L/C Loans by the
Synthetic Issuing Banks, Revolving Credit Lenders or Synthetic L/C Lenders pursuant to Section
2.03(c)) and of each Synthetic Issuing Bank to issue Synthetic Letters of Credit to be
terminated, whereupon the same shall forthwith terminate and (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower, declare the Loans, all interest
thereon and all other amounts payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon the Loans, all such interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided, however, that, in the
event of an actual or deemed entry of an order for relief with respect to the Borrower under the
Federal Bankruptcy Code, (x) the Commitments of each Lender Party and the obligation of each Lender
Party to make Loans (other than Synthetic L/C Loans by the Synthetic Issuing Banks, Revolving
Credit Lenders or Synthetic L/C Lenders pursuant to Section 2.03(c)) and of each Synthetic
Issuing Bank to issue Synthetic Letters of Credit shall automatically be terminated and (y) the
Loans, all such interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.




          SECTION 6.02. Actions in Respect of the Synthetic Letters of Credit upon Default. If
any Event of Default shall have occurred and be continuing, the Administrative Agent may, or shall
at the request of the Required Lenders, irrespective of whether it is taking any of the actions
described in Section 6.01 or otherwise, make demand upon the Borrower to, and forthwith
upon such demand the Borrower will, pay to the First Lien Collateral Agent on behalf of the Lender
Parties in same day funds at the Collateral Agent’s Office, for deposit in the Synthetic L/C Cash
Collateral Account, an amount equal to 103.0% of the aggregate Available Amount of all Synthetic
Letters of Credit then outstanding; provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, the
Borrower shall be obligated to pay to the Collateral Agent on behalf of the Lender Parties in same
day funds at the Collateral Agent’s Office, for deposit in the Synthetic L/C Cash Collateral
Account, an amount equal to 103.0% of the aggregate Available Amount of all Letters of Credit then
outstanding, without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower. If at any time the Administrative Agent or the First Lien
Collateral Agent determines that any funds held in the Synthetic L/C Cash Collateral Account are
subject to any right or claim of any Person other than the Agents and the Lender Parties or that
the total amount of such funds is less than 103.0% of the aggregate Available Amount of all
Synthetic Letters of Credit,



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the Borrower will, forthwith upon demand by the Administrative Agent
or the First Lien Collateral Agent, pay to the Collateral Agent, as additional funds to be
deposited and held in the
Synthetic L/C Cash Collateral Account, an amount equal to the excess of (a) 103.0% of the
aggregate Available Amount of all Synthetic Letters of Credit then outstanding over (b) the total
amount of funds, if any, then held in the Synthetic L/C Cash Collateral Account that the
Administrative Agent or the First Lien Collateral Agent, as the case may be, determines to be free
and clear of any such right and claim. Upon the drawing of any Synthetic Letter of Credit for
which funds are on deposit in the Synthetic L/C Cash Collateral Account, such funds shall be
applied to reimburse the Synthetic Issuing Bank or the Appropriate Lenders, as applicable, to the
extent permitted by applicable law.




ARTICLE VII




THE AGENTS




          SECTION 7.01. Authorization and Action. (a) Each Lender Party (in its capacities as
a Lender and a Synthetic Issuing Bank (if applicable)) hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to the Administrative
Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of the Obligations of the Loan Parties), the
Administrative Agent shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such instructions shall
be binding upon all Lender Parties and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action that exposes the Administrative Agent
to personal liability or that is contrary to this Agreement or applicable law.




          (b) The Administrative Agent may execute any of its duties under this Agreement or any other
Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the First Lien Collateral Documents or of exercising any rights and
remedies thereunder at the direction of the First Lien Collateral Agent) by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or
experts concerning all matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it
selects in accordance with the foregoing provisions of this Section 7.01(b) in the absence
of the Administrative Agent’s gross negligence or willful misconduct.




          SECTION 7.02. Administrative Agent’s Reliance, Etc. Neither the Administrative Agent
nor any of its directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with the Loan Documents, except for its or
their own gross negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (a) may consult with



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legal counsel (including counsel for any
Loan Party), independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or experts; (b) makes
no warranty or representation to any Lender Party and shall not be responsible to any Lender Party
for any statements, warranties or representations (whether written or oral) made in or in
connection with the Loan Documents; (c) shall not have any duty to ascertain or to inquire as to
the performance, observance or satisfaction of any of the terms, covenants or conditions of any
Loan Document on the part of any Loan Party or the existence at any time of any Default under the
Loan Documents or to inspect the property (including the books and records) of any Loan Party; (d)
shall not be responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or
security interest created or purported to be created under or in connection with, any Loan Document
or any other instrument or document furnished pursuant thereto; and (e) shall incur no liability
under or in respect of any Loan Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, telecopy or electronic communication) believed by
it to be genuine and signed or sent by the proper party or parties.




          SECTION 7.03. Initial Banks and Affiliates. With respect to its Commitments, the
Loans made by it and any Notes issued to it, each Initial Bank shall have the same rights and
powers under the Loan Documents as any other Lender Party and may exercise the same as though each
were not an Agent; and the term “Lender Party” or “Lender Parties” shall, unless otherwise
expressly indicated, include each Initial Bank in their respective individual capacities. Each
Initial Bank and their respective affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and generally engage in any
kind of business with, any Loan Party, any of its Subsidiaries and any Person that may do business
with or own securities of any Loan Party or any such Subsidiary, all as if such Initial Bank was
not an Agent and without any duty to account therefor to the Lender Parties. No Initial Bank shall
have any duty to disclose any information obtained or received by it or any of its Affiliates
relating to any Loan Party or any of its Subsidiaries to the extent such information was obtained
or received in any capacity other than as such Initial Bank.




          SECTION 7.04. Lender Party Credit Decision. Each Lender Party acknowledges that it
has, independently and without reliance upon any Agent or any other Lender Party and based on the
financial statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and without reliance
upon any Agent or any other Lender Party and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement.




          SECTION 7.05. Indemnification. (a) Each Lender Party severally agrees to indemnify
each Agent (to the extent not promptly reimbursed by the Borrower) from and against such Lender
Party’s ratable share (determined as provided below) of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever that may be imposed on, incurred by, or asserted



110









 






against such Agent in any way
relating to or arising out of the Loan Documents or any action taken or omitted by such Agent under
the Loan Documents (collectively, the “Indemnified
Costs”); provided, however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent’s gross negligence or willful misconduct as found in a
final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the
foregoing, each Lender Party agrees to reimburse each Agent promptly upon demand for its ratable
share of any costs and expenses (including, without limitation, fees and expenses of counsel)
payable by the Borrower under Section 9.04, to the extent that such Agent is not promptly
reimbursed for such costs and expenses by the Borrower. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05 applies
whether any such investigation, litigation or proceeding is brought by any Lender Party or any
other Person.




          (b) Each Synthetic L/C Lender severally agrees to indemnify the Synthetic Issuing Bank (to the
extent not promptly reimbursed by the Borrower) from and against such Lender Party’s ratable share
(determined as provided below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against such Synthetic Issuing Bank in any way relating
to or arising out of the Loan Documents or any action taken or omitted by such Synthetic Issuing
Bank under the Loan Documents; provided, however, that no Lender Party shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Synthetic Issuing Bank’s gross negligence or
willful misconduct as found in a final, non-appealable judgment by a court of competent
jurisdiction. Without limitation of the foregoing, each Synthetic L/C Lender agrees to reimburse
the Synthetic Issuing Bank promptly upon demand for its ratable share of any costs and expenses
(including, without limitation, fees and expenses of counsel) payable by the Borrower under
Section 9.04, to the extent that such Synthetic Issuing Bank is not promptly reimbursed for
such costs and expenses by the Borrower.




          (c) For purposes of Section 7.05(a), (i) each Lender Party’s ratable share of any
amount shall be determined, at any time, according to the sum of (A) the aggregate principal amount
of the Loans outstanding at such time and owing to such Lender Party, (B) in the case of any
Synthetic L/C Lender, such Synthetic L/C Lender’s Pro Rata Shares of the aggregate Available Amount
of all Synthetic Letters of Credit outstanding at such time, (C) in the case of any Term B Lender,
the aggregate unused portions of such Term B Lender’s Term B Commitments at such time and (D) in
the case of any Revolving Credit Lender, such Revolving Credit Lender’s Unused Revolving Credit
Commitments at such time, (ii) each Revolving Credit Lender’s ratable share of any amount shall be
determined, at any time, according to the sum of (A) the aggregate principal amount of the
Revolving Credit Loans outstanding at such time and owing to such Lender, and (B) such Lender’s
Unused Revolving Credit Commitments at such time, (iii) each Synthetic L/C Lender’s ratable share
of any amount shall be determined, at any time, according to the sum of (A) the aggregate principal
amount of the Synthetic L/C Loans outstanding at such time and owing to such Lender and (B) the
aggregate unused portion of such


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          Lender’s Synthetic L/C Deposit Commitment, if any, at such time.
The failure of any Lender Party to reimburse any Agent or any Synthetic Issuing Bank, as the case
may be, promptly upon
demand for its ratable share of any amount required to be paid by the Lender Parties to the
such Agent or such Synthetic Issuing Bank, as the case may be, as provided herein shall not relieve
any other Lender Party of its obligation hereunder to reimburse such Agent or Synthetic Issuing
Bank, as the case may be, for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse such Agent or Synthetic Issuing
Bank, as the case may be, for such other Lender Party’s ratable share of such amount. Without
prejudice to the survival of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 7.05 shall survive the payment
in full of principal, interest and all other amounts payable hereunder and under the other Loan
Documents.




          (d) Each Revolving Credit Lender severally agrees to indemnify the Fronting Bank (to the
extent not promptly reimbursed by the Borrower) from and against such Lender Party’s ratable share
(determined as provided in clause (d) above) of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever that may be imposed on, incurred by, or asserted against such Fronting Bank in
any way relating to or arising out of the Loan Documents or any action taken or omitted by such
Fronting Bank under the Loan Documents; provided, however, that no Lender Party shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Fronting Bank’s gross negligence or
willful misconduct as found in a final, non-appealable judgment by a court of competent
jurisdiction. Without limitation of the foregoing, each Revolving Credit Lender agrees to
reimburse the Fronting Bank promptly upon demand for its ratable share of any costs and expenses
(including, without limitation, fees and expenses of counsel) payable by the Borrower under
Section 9.04, to the extent that such Fronting Bank is not promptly reimbursed for such
costs and expenses by the Borrower.




          SECTION 7.06. Successor Administrative Agent. The Administrative Agent may resign as
to any or all of the Facilities at any time by giving 30 days’ written notice thereof to the Lender
Parties and the Borrower and may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have the right to
appoint a successor Administrative Agent as to such of the Facilities as to which the
Administrative Agent has resigned or been removed. If no successor Administrative Agent shall have
been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent’s giving of notice of resignation or the Required Lenders’
removal of the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf
of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States or of any State thereof and having a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations under the Loan



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Documents. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent as to less than all of the
Facilities, such successor Administrative
Agent shall succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Administrative Agent as to such Facilities, other than with respect to
funds transfers and other similar aspects of the administration of Borrowings under such
Facilities, issuances of Synthetic Letters of Credit (notwithstanding any resignation as
Administrative Agent with respect to the Synthetic L/C Facility) and payments by the Borrower in
respect of such Facilities, and the retiring Administrative Agent shall be discharged from its
duties and obligations under this Agreement as to such Facilities, other than as aforesaid. If
within 45 days after written notice is given of the retiring Administrative Agent’s resignation or
removal under this Section 7.06 no successor Administrative Agent shall have been appointed
and shall have accepted such appointment, then on such 45th day (a) the retiring Administrative
Agent’s resignation or removal shall become effective, (b) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents and (c) the
Required Lenders shall thereafter perform all duties of the retiring Administrative Agent under the
Loan Documents until such time, if any, as the Required Lenders appoint a successor Agent as
provided above. After any retiring Administrative Agent’s resignation or removal hereunder as
Administrative Agent as to any of the Facilities shall have become effective, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent as to such Facilities under this Agreement.




ARTICLE VIII




GUARANTY




          SECTION 8.01. Guaranty; Limitation of Liability. (a) Each Guarantor, jointly and
severally, hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when
due, whether at scheduled maturity or on any date of a required prepayment or by acceleration,
demand or otherwise, of all Obligations of each other Loan Party now or hereafter existing under or
in respect of the Loan Documents (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct
or indirect, absolute or contingent, and whether for principal, interest, premiums, fees,
indemnities, contract causes of action, costs, expenses or otherwise (such Obligations being the
“Guaranteed Obligations”), and agrees to pay any and all expenses (including, without limitation,
reasonable fees and expenses of counsel) incurred by the Administrative Agent or any other Lender
Party in enforcing any rights under this Guaranty or any other Loan Document. Without limiting the
generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by any other Loan Party to any Lender Party
under or in respect of the Loan Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such
other Loan Party.




          (b) Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each
other Lender Party, hereby confirms that it is the intention of all



113









 






such Persons that this Guaranty
and the Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state
law to the extent applicable to this Guaranty and the Obligations of each Guarantor hereunder. To
effectuate the foregoing intention, the Administrative Agent, the other Lender Parties and the
Guarantors hereby irrevocably agree that the Obligations of each Guarantor under this Guaranty at
any time shall be limited to the maximum amount as will result in the Obligations of such Guarantor
under this Guaranty not constituting a fraudulent transfer or conveyance.




          (c) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment
shall be required to be made to any Lender Party under this Guaranty or any other guaranty, such
Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other
Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Lender
Parties under or in respect of the Loan Documents.




          SECTION 8.02. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Lender Party with respect thereto. The Obligations of each Guarantor
under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan Documents, and a separate
action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:





     (a) any lack of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;




     (b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations or any other Obligations of any other Loan Party under
or in respect of the Loan Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to any Loan Party
or any of its Subsidiaries or otherwise;




     (c) any taking, exchange, release or non-perfection of any Collateral or any other
collateral, or any taking, release or amendment or waiver of, or consent to departure from,
any other guaranty, for all or any of the Guaranteed Obligations;




     (d) any manner of application of Collateral or any other collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral or any other collateral for all or any of the Guaranteed



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Obligations or any other Obligations of any Loan Party under the Loan Documents or any other
assets of any Loan Party or any of its Subsidiaries;




     (e) any change, restructuring or termination of the corporate structure or existence of
any Loan Party or any of its Subsidiaries;




     (f) any failure of any Lender Party to disclose to any Loan Party any information
relating to the business, condition (financial or otherwise), operations, performance,
properties or prospects of any other Loan Party now or hereafter known to such Lender Party
(each Guarantor waiving any duty on the part of the Lender Parties to disclose such
information);




     (g) the failure of any other Person to execute or deliver this Agreement or any other
guaranty or agreement or the release or reduction of liability of any Guarantor or other
guarantor or surety with respect to the Guaranteed Obligations; or




     (h) any other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by any Lender Party that might
otherwise constitute a defense available to, or a discharge of, any Loan Party or any other
guarantor or surety.


This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any
Lender Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower
or any other Loan Party or otherwise, all as though such payment had not been made.




          SECTION 8.03. Waivers and Acknowledgments. (a) Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment,
demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and
any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that any Lender Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party or any other Person
or any Collateral.




          (b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this
Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.




          (c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by
reason of any claim or defense based upon an election of remedies by any Lender Party that in any
manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other guarantor or any other Person
or any Collateral and (ii) any defense based on any right of set-off or counterclaim against or in
respect of the Obligations of such Guarantor hereunder.




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          (d) Each Guarantor acknowledges that the First Lien Collateral Agent may, without notice to or
demand upon such Guarantor and without affecting the liability of such Guarantor under this
Guaranty, foreclose under any mortgage by nonjudicial sale, and each
Guarantor hereby waives any defense to the recovery by the First Lien Collateral Agent and the
other First Lien Secured Parties against such Guarantor of any deficiency after such nonjudicial
sale and any defense or benefits that may be afforded by applicable law.




          (e) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any
Lender Party to disclose to such Guarantor any matter, fact or thing relating to the business,
condition (financial or otherwise), operations, performance, properties or prospects of any other
Loan Party or any of its Subsidiaries now or hereafter known by such Lender Party.




          (f) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by the Loan Documents and that the waivers set forth
in Section 8.02 and this Section 8.03 are knowingly made in contemplation of such
benefits.




          SECTION 8.04. Subrogation. Each Guarantor hereby unconditionally and irrevocably
agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower,
any other Loan Party that arise from the existence, payment, performance or enforcement of such
Guarantor’s Obligations under or in respect of this Guaranty or any other Loan Document, including,
without limitation, any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of any Lender Party against the
Borrower, any other Loan Party or any Collateral, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law, including, without limitation, the right to
take or receive from the Borrower or any other Loan Party directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of such claim, remedy
or right, unless and until all of the Guaranteed Obligations and all other amounts payable under
this Guaranty shall have been paid in full in cash, all Synthetic Letters of Credit and all Secured
Hedge Agreements shall have expired or been terminated and the Commitments shall have expired or
been terminated. If any amount shall be paid to any Guarantor in violation of the immediately
preceding sentence at any time prior to the latest of (a) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the Term B Maturity
Date, (c) the latest date of expiration or termination of all Synthetic Letters of Credit and all
Secured Hedge Agreements and (d) the return of the Synthetic L/C Deposits and the Revolving
Credit-Linked Deposits, such amount shall be received and held in trust for the benefit of the
Lender Parties, shall be segregated from other property and funds of such Guarantor and shall
forthwith be paid or delivered to the Administrative Agent in the same form as so received (with
any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations
and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as Collateral for any Guaranteed Obligations or
other amounts payable under this Guaranty thereafter arising. If (i) any Guarantor shall make
payment to any Lender Party of all or any part of the Guaranteed Obligations, (ii) all of the
Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid



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in
full in cash, (iii) the Term B Maturity Date shall have occurred, (iv) all Synthetic Letters of
Credit and all Secured Hedge Agreements shall have expired or been terminated and (v) the Synthetic
L/C Deposits and the Revolving Credit-Linked Deposits shall have been returned to
the Synthetic L/C Lenders, the Lender Parties will, at such Guarantor’s request and expense,
execute and deliver to such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of
an interest in the Guaranteed Obligations resulting from such payment made by such Guarantor
pursuant to this Guaranty.




          SECTION 8.05. Subordination. Each Loan Party hereby subordinates any and all debts,
liabilities and other Obligations owed to such Loan Party by each other Loan Party (the
“Subordinated Obligations”) to the First Lien Obligations of such Loan Party to the extent and in
the manner provided in the Terms of Subordination.




          SECTION 8.06. Continuing Guaranty; Assignments. This Guaranty is a continuing
guaranty and shall (a) remain in full force and effect until a Repayment Event has occurred, (b) be
binding upon each Guarantor, its successors and assigns and (c) inure to the benefit of and be
enforceable by the Lender Parties and their successors, transferees and assigns. Without limiting
the generality of clause (c) of the immediately preceding sentence, any Lender Party may
assign or otherwise transfer all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or any portion of its Commitments, the Loans owing to it, its
Synthetic L/C Deposits, its Revolving Credit-Linked Deposits and any Note or Notes held by it) to
any other Person, and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to such Lender Party herein or otherwise, in each case as and to the extent
provided in Section 9.07. Except as expressly permitted under the Loan Documents, no
Guarantor shall have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender Parties.




ARTICLE IX




MISCELLANEOUS




          SECTION 9.01. Amendments, Etc. (a) Subject to Section 5.3(d) of the
Intercreditor Agreement and clause (b) below, no amendment or waiver of any provision of
this Agreement, the Notes or any other Loan Document (including the Intercreditor Agreement and the
Security Deposit Agreement), nor consent to any departure by any Loan Party therefrom, shall in any
event be effective unless the same shall be in writing and signed by the Borrower and the Required
Lenders (or the Administrative Agent on their behalf), and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given; provided,
however, that





     (i) no amendment, waiver or consent shall, unless in writing and signed by the
Borrower and all of the Lender Parties, do any of the following at any time:



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     (A) waive any of the conditions specified in Section 3.01 or,
in the case of the Initial Extension of Credit, Section 3.02;




     (B) change (A) the definition of “Required Lenders” or (B) the number
of Lenders or the percentage of (x) the Commitments, (y) the aggregate
unpaid principal amount of the Loans or (z) the aggregate Available Amount
of outstanding Synthetic Letters of Credit that, in each case, shall be
required for the Lenders or any of them to take any action hereunder or
under any other Loan Document;




     (C) change any other definition in the Intercreditor Agreement or the
Security Deposit Agreement in any manner materially and adversely affecting
the Lender Parties;




     (D) other than as expressly contemplated by Section 5.1 of the
Intercreditor Agreement, release one or more Guarantors (or otherwise limit
such Guarantors’ liability with respect to the Obligations owing to the
Agents and the Lender Parties under the Guaranties) if such release or
limitation is in respect of a material portion of the value of the
Guaranties to the Lender Parties;




     (E) other than as expressly contemplated by Section 5.1 of the
Intercreditor Agreement, release any material portion of the Collateral in
any transaction or series of related transactions; or




     (F) amend this Section 9.01, and




     (ii) no amendment, waiver or consent shall, unless in writing and signed by the
Borrower and the Required Lenders and each Lender Party specified below for such
amendment, waiver or consent:




     (A) increase the Commitments of a Lender Party without the consent of
such Lender Party;




     (B) reduce the principal of, or stated rate of interest on, the Loans
owed to a Lender Party or the Synthetic L/C Deposit or the Revolving
Credit-Linked Deposit of such Lender Party or any fees (including the
Participation Fee and other fees payable pursuant to Section 2.08)
or any other amounts stated to be payable hereunder or under the other Loan
Documents to such Lender Party without the consent of such Lender Party;




     (C) postpone any date scheduled for any payment of principal of, or
interest on, the Loans pursuant to Section 2.04 or 2.07, any
date on which the Synthetic L/C Deposits or the Revolving Credit-Linked
Deposit are to be returned in full to the Synthetic L/C Lenders or any date
fixed for



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any payment of fees hereunder in each case payable to a Lender
Party without the consent of such Lender Party;




     (D) impose any restrictions on the rights of such Lender Party under
Section 9.07;




     (E) change the order of application of any reduction in the Commitments
or any prepayment of Loans among the Facilities from the application thereof
set forth in the applicable provisions of Section 2.05(b) or
2.06(b), respectively, in any manner that materially adversely
affects the Lenders under a Facility without the consent of holders of a
majority of the Commitments or Loans outstanding under such Facility;




     (F) change the order of application of proceeds of Collateral and other
payments set forth in Section 4.1 of the Intercreditor Agreement or
Article III of the Security Deposit Agreement in a manner that
materially adversely affects any Lender Party without the consent of such
Lender Party; or




     (G) otherwise amend or modify any of the Intercreditor Agreement or any
First Lien Collateral Document in a manner which disproportionately affects
any Lender Party vis-à-vis any other Secured Party without the written
consent of such Lender Party;


provided further that no amendment, waiver or consent shall, unless in writing and signed by each
Synthetic Issuing Bank, as the case may be, in addition to the Borrower and the Lenders required
above to take such action, affect the rights or obligations of the Synthetic Issuing Banks, as the
case may be, under this Agreement; and provided further that no amendment, waiver or consent shall,
unless in writing and signed by an Agent in addition to the Borrower and the Lenders required above
to take such action, affect the rights or duties of such Agent under this Agreement or the other
Loan Documents.




          (b) Notwithstanding the other provisions of this Section 9.01, the Borrower, the
Guarantors, the First Lien Collateral Agent and the Administrative Agent may (but shall have no
obligation to) amend or supplement the Loan Documents without the consent of any Lender Party: (i)
to cure any ambiguity, defect or inconsistency; (ii) to make any change that would provide any
additional rights or benefits to the Lender Parties; (iii) to make, complete or confirm any grant
of Collateral permitted or required by this Agreement or any of the First Lien Collateral Documents
or any release of any Collateral that is otherwise permitted under the terms of this Agreement and
the First Lien Collateral Documents or (iv) to facilitate the return of the Synthetic Deposits to
the Synthetic L/C Lenders in a manner consistent with the intent of this Agreement.




          (c) If, in connection with any proposed amendment, waiver or consent, the consent of all of
the Lenders, or all of the Lenders directly affected thereby, is required pursuant to this
Section 9.01, and any such Lender refuses to consent to such amendment, waiver or



119









 






consent
as to which the Required Lenders have consented (any such Lender whose consent is not obtained as
described in this Section 9.01 being referred to as a “Non-Consenting Lender”), then, so
long as the Administrative Agent is not a Non-Consenting Lender, at the Borrower’s
request and at the sole cost and expense of the Borrower, the Administrative Agent or an
Eligible Assignee shall be entitled (but shall have no obligation) to purchase from such
Non-Consenting Lender, and such Non-Consenting Lender (by its acceptance of the benefits of the
applicable Loan Documents) agrees that it shall, upon the Administrative Agent’s request, sell and
assign to the Administrative Agent or such Eligible Assignee, all of the Loans and Commitments of
such Non-Consenting Lender or Non-Consenting Lenders for an amount equal to the principal balance
of all Loans held by the Non-Consenting Lender and all accrued interest and fees with respect
thereto through the date of sale; provided that such Eligible Assignee consents to the proposed
amendment, waiver or consent (it being understood and agreed that the Commitments of such
Non-Consenting Lender shall include, if such Non-Consenting Lender is a Synthetic Issuing Bank, the
Synthetic L/C Issuing Commitment of such Non-Consenting Lender). Each Lender (by its acceptance of
the benefits of the Loan Documents) agrees that, if it becomes a Non-Consenting Lender, it shall
execute and deliver to the Administrative Agent an Assignment and Acceptance to evidence such sale
and purchase and shall deliver to the Administrative Agent any Note (if the assigning Lender’s
Loans are evidenced by Notes) subject to such Assignment and Acceptance; provided, however, that
the failure of any Non-Consenting Lender to execute an Assignment and Acceptance shall not render
such sale and purchase (and the corresponding assignment) ineffective.




          SECTION 9.02. Notices, Etc. (a) All notices and other communications provided for
hereunder shall be either (x) in writing (including telegraphic, telecopy or electronic (including
portable document format (pdf)) communication) and mailed, telegraphed, telecopied or delivered or
(y) as and to the extent set forth in Section 9.02(b) and in the proviso to this
Section 9.02(a), in an electronic medium and delivered as set forth in Section
9.02(b), if to any Loan Party, to the Borrower at its address at The Schrafft Center, 529 Main
Street, Suite 605, Charlestown, MA 02129, Attention: Executive Vice President, Fax: (617)
381-2211 (with a copy sent to Boston Generating LLC c/o K Road Power Management, LLC, 330 Madison
Avenue, 25th Floor, New York, NY 10017, Attention: President, Fax: (212) 351-0515 and
a copy sent to Robert F. Quaintance Jr. and Paul D. Brusiloff, Debevoise & Plimpton LLP, 919 Third
Avenue, New York, New York 10022, Fax: (212) 521-7451 and (212) 521-7015, respectively); if to
any Initial Lender Party, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender Party, at its Domestic Lending Office specified
in the administrative questionnaire delivered in conjunction with the Assignment and Acceptance
pursuant to which it became a Lender Party; if to the Administrative Agent or the First Lien
Collateral Agent, at its address at 11 Madison Avenue, New York, NY 10010, Attention: Candace
Sorina, Fax: (212) 325-8304, E-mail Address: candace.sorina@credit-suisse.com; or, as to the
Borrower or the Administrative Agent, at such other address as shall be designated by such party in
a written notice to the other parties and, as to each other party, at such other address as shall
be designated by such party in a written notice to the Borrower and the Administrative Agent;
provided, however, that materials and information described in Section 9.02(b) shall be
delivered to the Administrative Agent in accordance with the provisions thereof or as otherwise
specified to the Borrower by the Administrative Agent. All such notices



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and other communications
shall, when mailed, telegraphed, telecopied, or e-mailed, be effective when deposited in the mails,
delivered to the telegraph company, transmitted by telecopier or sent by electronic communication,
respectively, except that notices and communications to any
Agent pursuant to Article II, III or VII shall not be effective until
received by such Agent. Delivery by telecopier of an executed counterpart of a signature page to
any amendment or waiver of any provision of this Agreement or the Notes shall be effective as
delivery of an original executed counterpart thereof.




          (b) The Borrower hereby agrees that it will provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to the Administrative
Agent pursuant to the Loan Documents, including, without limitation, all notices, requests,
financial statements, financial and other reports, certificates and other information materials,
but excluding any such communication that (i) relates to a request for a new, or a Conversion of an
existing, Borrowing (including any election of an interest rate or interest period relating
thereto), (ii) relates to the payment of any principal or other amount due under this Agreement
prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default
under this Agreement or (iv) is required to be delivered to satisfy any condition precedent to the
effectiveness of this Agreement and/or any Borrowing or other Extension of Credit thereunder (all
such non-excluded communications being referred to herein collectively as “Communications”), by
transmitting the Communications in an electronic/soft medium in a format acceptable to the
Administrative Agent to an electronic mail address specified by the Administrative Agent to the
Borrower. In addition, the Borrower agrees to continue to provide the Communications to the
Administrative Agent in the manner specified in the Loan Documents but only to the extent requested
by the Administrative Agent. The Borrower further agrees that the Administrative Agent may make
the Communications available to the Lenders by posting the Communications on IntraLinks or a
substantially similar electronic transmission system (the “Platform”).




          (c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM
AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE
COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS
AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”) HAVE ANY LIABILITY TO THE BORROWER, ANY LENDER
PARTY OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT
OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,
CONTRACT OR OTHERWISE) ARISING OUT OF THE



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BORROWER’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF
COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND
IN A FINAL NON-APPEALABLE
JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT
PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.




          (d) The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute effective delivery of
the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender
Party agrees (i) that notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective delivery of the
Communications to such Lender Party for purposes of the Loan Documents. Each Lender Party agrees
to notify the Administrative Agent in writing (including by electronic communication) from time to
time of such Lender Party’s e-mail address to which the foregoing notice may be sent by electronic
transmission and (ii) that the foregoing notice may be sent to such e-mail address. Nothing herein
shall prejudice the right of the Administrative Agent or any Lender Party to give any notice or
other communication pursuant to any Loan Document in any other manner specified in such Loan
Document.




          SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender Party or any
Agent to exercise, and no delay in exercising, any right hereunder or under any Note or any other
Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies provided by law.




          SECTION 9.04. Costs and Expenses. (a) Other than with respect to Other Taxes which
are governed solely by Section 2.12, the Borrower agrees to pay on demand (i) all costs and
expenses of each Agent in connection with the preparation, execution, delivery, administration,
modification and amendment of, or any consent or waiver under, the Loan Documents (including,
without limitation, (A) all due diligence, collateral review, syndication, transportation,
computer, duplication, appraisal, audit, insurance, consultant, search, filing and recording fees
and expenses and (B) the reasonable fees and expenses of counsel for each Agent with respect
thereto, with respect to advising such Agent as to its rights and responsibilities, or the
perfection, protection or preservation of rights or interests, under the Loan Documents, with
respect to negotiations with any Loan Party or with other creditors of any Loan Party or any of its
Subsidiaries arising out of any Default or any events or circumstances that may give rise to a
Default and with respect to presenting claims in or otherwise participating in or monitoring any
bankruptcy, insolvency or other similar proceeding involving creditors’ rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of each Agent and each Lender Party
in connection with the enforcement of the Loan Documents, whether in any action, suit or
litigation, or any bankruptcy, insolvency or other similar proceeding affecting creditors’ rights
generally (including, without limitation, the reasonable fees and expenses of counsel for the
Administrative Agent and each Lender Party with respect thereto).




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          (b) The Borrower agrees to indemnify, defend and save and hold harmless each Agent, each
Lender Party and each of their Affiliates (other than any Commodity Hedge
Counterparty in such capacity) and their respective officers, directors, employees, agents,
trustees and advisors (each, an “Indemnified Party”) from and against, and shall pay on demand, any
and all claims, damages, losses, liabilities and related expenses (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation, litigation or proceeding or preparation
of a defense in connection therewith) (i) the Facilities, the actual or proposed use of the
proceeds of the Loans, the Revolving Credit-Linked Deposits, the Synthetic L/C Deposits or the
Synthetic Letters of Credit, the Transaction Documents or any of the transactions contemplated
thereby (including, without limitation, the Transaction) or (ii) the actual or alleged presence of
Hazardous Materials on any property of any Loan Party or any of its Subsidiaries or any
Environmental Action relating in any way to any Loan Party or any of its Subsidiaries, except to
the extent such claim, damage, loss, liability or expense (x) is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross
negligence or willful misconduct or (y) in the case of clause (i) above, is a tax. In the
case of an investigation, litigation or other proceeding to which the indemnity in this Section
9.04(b) applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors, shareholders or creditors,
any Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a
party thereto and whether or not the Transaction is consummated. The Borrower also agrees not to
assert any claim against any Agent, any Lender Party or any of their Affiliates, or any of their
respective officers, directors, employees, agents, trustees and advisors, on any theory of
liability, for special, indirect, consequential or punitive damages arising out of or otherwise
relating to the Facilities, the actual or proposed use of the proceeds of the Loans, the Revolving
Credit-Linked Deposits, the Synthetic L/C Deposits or the Synthetic Letters of Credit, the
Transaction Documents or any of the transactions contemplated by the Transaction Documents.




          (c) If any payment of principal of, or Conversion of, any Eurodollar Rate Loan is made by the
Borrower to or for the account of a Lender Party, any Revolving Credit-Linked Deposit is returned
to any Revolving Credit Lender or any Synthetic L/C Deposit is returned to any Synthetic L/C Lender
other than on the last day of the Interest Period for such Loan or Synthetic L/C Deposit, as
applicable, as a result of a payment or Conversion pursuant to Section 2.06,
2.09(b)(i) or 2.10(d), acceleration of the maturity of the Loans pursuant to
Section 6.01 or for any other reason, or if the Borrower fails to make any payment or
prepayment of an Loan for which a notice of prepayment has been given or that is otherwise required
to be made, whether pursuant to Section 2.04, 2.06 or 6.01 or otherwise,
the Borrower shall, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such Lender Party any
amounts required to compensate such Lender Party for any additional losses, costs or expenses that
it may reasonably incur as a result of such payment or Conversion or such failure to pay or prepay,
as the case may be, including, without limitation, any loss (but excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender Party to fund or maintain such Loan.




123









 








          (d) If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it
under any Loan Document, including, without limitation, fees and expenses of counsel and
indemnities, such amount may be paid on behalf of such Loan Party by the Administrative Agent or
any Lender Party, in its sole discretion.




          (e) Without prejudice to the survival of any other agreement of any Loan Party hereunder or
under any other Loan Document, the agreements and obligations of the Borrower contained in
Sections 2.10 and 2.12 and this Section 9.04 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under any of the other Loan
Documents.




          SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during the continuance
of any Event of Default and (b) the making of the request or the granting of the consent specified
by Section 6.01 to authorize the Administrative Agent to declare the Loans due and payable
pursuant to the provisions of Section 6.01, each Agent and each Lender Party and each of
their respective Affiliates is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and otherwise apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at any time owing by
such Agent, such Lender Party or such Affiliate to or for the credit or the account of the Borrower
against any and all of the Obligations of the Borrower now or hereafter existing under the Loan
Documents, irrespective of whether such Agent or such Lender Party shall have made any demand under
this Agreement and although such Obligations may be unmatured. Each Agent and each Lender Party
agrees promptly to notify the Borrower after any such set-off and application; provided, however,
that the failure to give such notice shall not affect the validity of such set-off and application.
The rights of each Agent and each Lender Party and their respective Affiliates under this Section
are in addition to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender Party and their respective Affiliates may have.




          SECTION 9.06. Binding Effect. This Agreement shall become effective when it shall
have been executed by the Borrower and each Agent and the Administrative Agent shall have been
notified by each Initial Lender Party that such Initial Lender Party has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower, each Agent and each Lender Party
and their respective successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written consent of each Lender
Party.




          SECTION 9.07. Assignments and Participations. (a) Each Lender may assign to one or
more Eligible Assignees all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment or Commitments, the Loans owing
to it, its Synthetic L/C Deposit, its Revolving Credit-Linked Deposit and the Note or Notes held by
it); provided, however, that (i) except in the case of an assignment to a Person that, immediately
prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any
Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the
aggregate amount of the Commitments being assigned to such Eligible Assignee



124









 






pursuant to such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1,000,000 (or such lesser amount as
shall be approved by the Administrative Agent and, so long as no Event of Default has occurred and
is continuing, the Borrower) for each Facility being assigned, provided that simultaneous
assignments by two or more Related Funds shall be treated as one assignment for purposes of the
minimum assignment requirement, (ii) each such assignment shall be to an Eligible Assignee, and (A)
to the extent that such assignment is in respect of the Revolving Credit Facility, the
Administrative Agent shall have consented to such assignment and, so long as no Event of Default
shall have occurred and be continuing, the Borrower shall have consented to such assignment and (B)
to the extent such assignment is to any Eligible Assignee that, immediately prior to such
assignment, was not a Lender, an Affiliate of a Lender or an Approved Fund, the Administrative
Agent shall have consented to such assignment (in each case such consent not to be unreasonably
withheld or delayed), (iii) each such assignment made as a result of a demand by the Borrower
pursuant to Section 2.17 or Section 9.01 shall be arranged by the Borrower after
consultation with the Administrative Agent and shall be either an assignment of all of the rights
and obligations of the assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other such assignments
that together cover all of the rights and obligations of the assigning Lender under this Agreement,
(iv) no Lender shall be obligated to make any such assignment as a result of a demand by the
Borrower pursuant to Section 2.17 or Section 9.01 unless and until such Lender
shall have received one or more payments from either the Borrower or one or more Eligible Assignees
in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances
owing to such Lender, together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this Agreement, (v) no such
assignments shall be permitted without the consent of the Administrative Agent until the
Administrative Agent shall have notified the Lender Parties that syndication of the Commitments
hereunder has been completed and (vi) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance via an electronic settlement system acceptable to the Administrative Agent (or, if
previously agreed with the Administrative Agent, manually), together with (A) any Note or Notes (if
any) subject to such assignment, (B) an administrative questionnaire and tax forms, if applicable
and (C) a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole
discretion of the Administrative Agent); provided, however, that only one such fee shall be payable
with respect to simultaneous assignments by or to one or more Related Funds; provided further that
for each such assignment made as a result of a demand by the Borrower pursuant to Section
2.17 or Section 9.01, the Borrower shall pay to the Administrative Agent the applicable
processing and recordation fee.




          (b) (i) In connection with each assignment of a Synthetic L/C Deposit Commitment, the
Synthetic L/C Deposit of the assignor Synthetic L/C Lender shall not be released, but shall instead
be purchased by the relevant assignee and continue to be held for application (to the extent not
already applied) in accordance with Article II to satisfy the relevant Eligible Assignee’s
obligations in respect of Synthetic Letters of Credit and




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     (ii) in connection with each assignment of Revolving Credit Commitments, the Revolving
Credit-Linked Deposit of the assignor Revolving Credit Lender shall not be released, but
shall instead be purchased by the relevant assignee and continue to be held for application
(to the extent not already applied) in accordance with Article II to satisfy such assignee’s
obligations in respect of Revolving Credit Loans. Each Revolving Credit Lender agrees that
immediately prior to each assignment by a Revolving Credit Lender (A) the Administrative
Agent shall establish a new Revolving Credit-Linked Sub-Account in the name of the assignee,
(B) unless otherwise consented to by the Administrative Agent, a corresponding portion of
the Revolving Credit-Linked Deposit credited to the Revolving Credit-Linked Sub-Account of
the assignor Revolving Credit Lender shall be purchased by the assignee and shall be
transferred from the assignor’s Revolving Credit-Linked Sub-Account to the assignee’s
Revolving Credit-Linked Sub-Account and (C) if after giving effect to such assignment the
Revolving Credit Commitment of the assignor Revolving Credit Lender shall be zero, the
Administrative Agent shall close the Revolving Credit-Linked Sub-Account of such assignor
Revolving Credit Lender.



          (c) Upon such execution, delivery, acceptance and recording, from and after the effective date
specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or Synthetic Issuing Bank,
as the case may be, hereunder and (ii) the Lender or Synthetic Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights (other than its rights under Sections
2.10, 2.12 and 9.04 to the extent any claim thereunder relates to an event
arising prior to such assignment) and be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning
Lender’s or Synthetic Issuing Bank’s rights and obligations under this Agreement, such Lender or
Synthetic Issuing Bank shall cease to be a party hereto).




          (d) By executing and delivering an Assignment and Acceptance, each Lender Party assignor
thereunder and each assignee thereunder confirm to and agree with each other and the other parties
thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such
assigning Lender Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or purported to be
created under or in connection with, any Loan Document or any other instrument or document
furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under any Loan Document or
any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it
has received a copy of this Agreement, together with copies of the financial statements referred to
in Section 4.01 and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such



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Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon
any Agent, such assigning Lender Party or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such
Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to be performed by it
as a Lender or Synthetic Issuing Bank, as the case may be.




          (e) The Administrative Agent, acting for this purpose (but only for this purpose) as the agent
of the Borrower, shall maintain at its address referred to in Section 9.02 a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the
names and addresses of the Lender Parties and the Commitment under each Facility of, and principal
amount of the Loans owing under each Facility to, each Lender Party from time to time (the
“Register”). The entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agents and the Lender Parties shall treat each Person whose
name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower or any Agent or any Lender Party at
any reasonable time and from time to time upon reasonable prior notice.




          (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and
an assignee, together with any Note or Notes (if any) subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt notice thereof to
the Borrower and each other Agent. If requested, in the case of any assignment by a Lender, within
10 Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute
and deliver to the Administrative Agent in exchange for the surrendered Note or Notes (if any) an
amended and restated Note (which shall be marked “Amended and Restated”) to the account of such
Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant
to such Assignment and Acceptance and, if any assigning Lender that had a Note or Notes prior to
such assignment has retained a Commitment hereunder under such Facility, an amended and restated
Note to the account of such assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such amended and restated Note or Notes shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A-1,
A-2 or A-3 hereto, as the case may be.




          (g) Each Synthetic Issuing Bank may assign to an Eligible Assignee all of its rights and
obligations under the undrawn portion of its Synthetic Letter of Credit Commitment at any time;
provided, however, that (i) each such assignment shall be to an Eligible Assignee and




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(ii) the parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together
with a processing and recordation fee of $3,500.




          (h) Each Lender Party may sell participations to one or more Persons (other than any Loan
Party) in or to all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitments, the Loans owing to it, its Synthetic L/C
Deposit, its Revolving Credit-Linked Deposits and the Note or Notes (if any) held by it); provided,
however, that (i) such Lender Party’s obligations under this Agreement (including, without
limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations, (iii) such Lender
Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Agents and the other Lender Parties shall continue to deal solely and directly with
such Lender Party in connection with such Lender Party’s rights and obligations under this
Agreement and (v) no participant under any such participation shall have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any departure by any
Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the
principal of, or interest on, the Loans or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, postpone any date fixed for any payment of
principal of, or interest on, the Loans or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or release all or substantially all of the
Collateral or the value of the Guarantys.




          (i) Any Lender Party may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 9.07, disclose to the assignee or
participant or proposed assignee or participant any information relating to the Borrower furnished
to such Lender Party by or on behalf of the Borrower; provided, however, that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve
the confidentiality of any Confidential Information received by it from such Lender Party.




          (j) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at
any time create a security interest in all or any portion of its rights under this Agreement
(including, without limitation, the Loans owing to it, its Synthetic L/C Deposit, its Revolving
Credit-Linked Deposits and the Note or Notes (if any) held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.




          (k) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may
create a security interest in all or any portion of the Loans owing to it, its Synthetic L/C
Deposit, its Revolving Credit-Linked Deposits and any Note or Notes held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for such obligations or
securities; provided that, unless and until such trustee actually becomes a Lender in compliance
with the other provisions of this Section 9.07, (i) no such pledge shall release the
pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall


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not be entitled to exercise any of the rights of a Lender under the Loan Documents even though
such trustee may have acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise.




          (l) Notwithstanding anything to the contrary contained herein, any Lender Party (a “Granting
Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to
provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make
pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any
SPC to fund any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to
make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity
or similar payment obligation under this Agreement for which a Lender Party would be liable, (ii)
no SPC shall be entitled to the benefits of Sections 2.10 and 2.12 (or any other
increased costs protection provision) and (iii) the Granting Lender shall for all purposes,
including, without limitation, the approval of any amendment or waiver of any provision of any Loan
Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of all outstanding commercial
paper or other senior Debt of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without
prior consent of, the Borrower and the Administrative Agent and with the payment of a processing
fee of $500, assign all or any portion of its interest in any Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its funding of Loans to any
rating agency, commercial paper dealer or provider of any surety or guarantee or credit or
liquidity enhancement to such SPC. This subsection (l) may not be amended without the
prior written consent of each Granting Lender, all or any part of whose Loans are being funded by
the SPC at the time of such amendment.




          SECTION 9.08. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Electronic delivery (by telecopier or portable document format (pdf)) of
an executed counterpart of a signature page to this Agreement shall be effective as delivery of an
original executed counterpart of this Agreement.




          SECTION 9.09. No Liability of the Synthetic Issuing Banks. The Borrower assumes all
risks of the acts or omissions of any beneficiary or transferee of any Synthetic Letter of Credit
with respect to its use of such Synthetic Letter of Credit. Neither any Synthetic Issuing Bank nor
any of its officers or directors shall be liable or responsible for: (a) the use that may be made
of any Synthetic Letter of Credit or any acts or omissions of any beneficiary or transferee



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in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all respects invalid,
insufficient, fraudulent or forged; (c) payment by such Synthetic Issuing Bank against presentation
of documents that do not comply with the terms of a Synthetic Letter of Credit, including failure
of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any
other circumstances whatsoever in making or failing to make payment under any Synthetic Letter of
Credit, except that the Borrower shall have a claim against such Synthetic Issuing Bank, and such
Synthetic Issuing Bank shall be liable to the Borrower, to the extent of any direct, but not
consequential, damages suffered by the Borrower that the Borrower proves were caused by (i) such
Synthetic Issuing Bank’s willful misconduct or gross negligence as determined in a final,
non-appealable judgment by a court of competent jurisdiction in determining whether documents
presented under any Synthetic Letter of Credit comply with the terms of the Synthetic Letter of
Credit or (ii) such Synthetic Issuing Bank’s willful failure to make lawful payment under a
Synthetic Letter of Credit after the presentation to it of a draft and certificates strictly
complying with the terms and conditions of the Synthetic Letter of Credit. In furtherance and not
in limitation of the foregoing, such Synthetic Issuing Bank may accept documents that appear on
their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary and, in connection therewith, shall adhere to Uniform Customs
and Practice for Documentary Credits, 1993 Revision, International Chamber of Commerce Publication
No. 500.




          SECTION 9.10. Confidentiality. Neither any Agent nor any Lender Party shall disclose
any Confidential Information to any Person without the consent of the Borrower, other than (a) to
such Agent’s or such Lender Party’s Affiliates and their officers, directors, employees, agents,
trustees and advisors and to actual or prospective Eligible Assignees and participants, and then
only on a confidential basis, (b) as required by any law, rule or regulation or judicial process,
(c) as requested or required by any state, Federal or foreign authority or examiner (including the
National Association of Insurance Commissioners or any similar organization or quasi-regulatory
authority) regulating such Lender Party, (d) to any rating agency when required by it, provided
that, prior to any such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Confidential Information relating to the Loan Parties received by it from
such Lender Party, (e) in connection with any litigation or proceeding to which such Agent or such
Lender Party or any of its Affiliates may be a party or (f) in connection with the exercise of any
right or remedy under this Agreement or any other Loan Document.




          SECTION 9.11. Marshalling; Payments Set Aside. Neither any Agent nor any Lender
Party shall be under any obligation to marshal any assets in favor of any Loan Party or any other
Person or against or in payment of any or all of the Obligations. To the extent that any Loan
Party makes a payment or payments to the Administrative Agent or the Lender Parties (or to the
Administrative Agent, on behalf of the Lender Parties), or any Agent or Lender Party enforces any
security interests or exercise its rights of set-off, and such payment or payments or the proceeds
of such enforcement or set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any
other party under any bankruptcy law, any other state or federal law, common



130









 






law or any equitable cause, then, to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related
thereto, shall be revived and continued in full force and effect as if such payment or payments had
not been made or such enforcement or set-off had not occurred.




          SECTION 9.12. Patriot Act Notice. Each Lender Party and each Agent (for itself and
not on behalf of any Lender Party) hereby notifies the Loan Parties that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record information that
identifies each Loan Party, which information includes the name and address of such Loan Party and
other information that will allow such Lender Party or such Agent, as applicable, to identify such
Loan Party in accordance with the Patriot Act. The Borrower shall, and shall cause each of its
Subsidiaries to, provide such information and take such actions as are reasonably requested by any
Agent or any Lender Party in order to assist the Agents and the Lender Parties in maintaining
compliance with the Patriot Act.




          SECTION 9.13. Hedge Banks. Each Lender Party hereby agrees that in its capacity as a
Hedge Bank it shall, and shall cause its Affiliates in their capacity as Hedge Banks to, comply
with all obligations of such party as a Hedge Bank under the Intercreditor Agreement.




          SECTION 9.14. Intercreditor Agreement. Each Lender hereby acknowledges and agrees on
behalf of itself and each of its Affiliates in their capacity as Hedge Banks that their respective
Lien priorities and other matters related to the Loan Documents and the Collateral are subject to
and governed by the Intercreditor Agreement. Each Lender, by delivering its signature page hereto,
funding its Loans on the Effective Date and/or executing an Assignment and Acceptance (as
applicable) shall be deemed to have (a) acknowledged receipt of, consented to and approved of the
Intercreditor Agreement both on its behalf (and on behalf of its Affiliates acting as Hedge Banks)
and (b) authorized (on behalf of itself and any Affiliate acting as a Hedge Bank) the
Administrative Agent and the First Lien Collateral Agent to perform their respective obligations
thereunder.




          SECTION 9.15. Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement or any of the other Loan Documents to which it is a party, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in
any such New York State court or, to the fullest extent permitted by law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or any of the other
Loan Documents in the courts of any jurisdiction.




          (b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter have




131









 







to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party in any New York State or
Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.




          SECTION 9.16. Governing Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.




          SECTION 9.17. Waiver of Jury Trial. Each of the Loan Parties, the Agents and the
Lender Parties irrevocably waives, to the fullest extent permitted by applicable law, all right to
trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to any of the Loan Documents, the Loans, the Synthetic
Letters of Credit or the actions of any Agent or any Lender Party in the negotiation,
administration, performance or enforcement thereof.




132









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.




	 	 	 	 	 
	 	BOSTON GENERATING, LLC,

as Borrower

 	 
	 	By:  	/s/
David L. Tohir	 
	 	 	Name:  	David L. Tohir	 
	 	 	Title:  	President	 
	 
	 	MYSTIC I, LLC,

as Guarantor

 	 
	 	By:  	/s/
David L. Tohir	 
	 	 	Name:  	David L. Tohir	 
	 	 	Title:  	President	 
	 
	 	FORE RIVER DEVELOPMENT, LLC,

as Guarantor

 	 
	 	By:  	/s/
David L. Tohir	 
	 	 	Name:  	David L. Tohir	 
	 	 	Title:  	President	 
	 
	 	MYSTIC DEVELOPMENT, LLC,

as Guarantor

 	 
	 	By:  	/s/
David L. Tohir	 
	 	 	Name:  	David L. Tohir	 
	 	 	Title:  	President	 
	 



133









 






	 	 	 	 	 
	 	BG BOSTON SERVICES, LLC,

as Guarantor

 	 
	 	By:  	/s/
David L. Tohir	 
	 	 	Name:  	David L. Tohir	 
	 	 	Title:  	President	 
	 
	 	BG NEW ENGLAND POWERSERVICES, INC.,
as Guarantor
 	 
	 	By:  	/s/
David L. Tohir	 
	 	 	Name:  	David L. Tohir	 
	 	 	Title:  	President	 
	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as Administrative Agent

 	 
	 	By:  	/s/
James Moran	 
	 	 	Name:  	James Moran	 
	 	 	Title:  	Managing Director	 
	 
	 	 	 
	 	By:  	/s/
Nupur Kumar	 
	 	 	Name:  	Nupur Kumar	 
	 	 	Title:  	Associate	 
	 
	 	GOLDMAN SACHS CREDIT PARTNERS, L.P.

as Initial Lender

 	 
	 	By:  	/s/
Bruce H. Mendelsohn	 
	 	 	Name:  	Bruce H. Mendelsohn	 
	 	 	Title:  	Authorized Signatory	 
	 
	 	 	 
	 




134